Martinez as trustee for Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers v Griffiths as trustee for the Griffiths HWL Practice Trust (No 2)

The case of *Martinez as trustee for Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers v Griffiths as trustee for the Griffiths HWL Practice Trust (No 2)* concerned an appeal heard in the Supreme Court of New South Wales, Court of Appeal. The dispute revolved around the costs of proceedings, particularly in light of an offer of compromise made by the respondent.

The primary legal issue before the Court of Appeal was the application of the Uniform Civil Procedure Rules 1999 (NSW) concerning costs, specifically rule 42.14 as modified by rule 51.48(1). This involved determining whether the respondent, having achieved a result on appeal no less favourable than their rejected offer of compromise, was entitled to indemnity costs from the date of the offer. The court also considered its discretion to "order otherwise" regarding the costs of the appeal, both before and after the offer was made.

The Court of Appeal reasoned that the respondent's rejection of the offer of compromise was unreasonable, given the outcome of the appeal. While the respondent achieved a favourable judgment by reference to their offer, the appeal itself also represented a successful outcome for the appellant. The court exercised its discretion to make specific orders regarding the costs of both the proceedings at first instance and the appeal.

The orders made by the Court of Appeal stipulated that the appellant pay the respondent's costs at first instance on an ordinary basis up to 19 January 2017, and on an indemnity basis from 20 January 2017 to 17 December 2019. The respondent was ordered to pay the appellant's costs thrown away by a vacated hearing. For the appeal proceedings, each party was to bear their own costs up to 30 August 2019, with the appellant ordered to pay the respondent's costs on an indemnity basis thereafter.