Penrith City Council v Parks (No 2)

The Court of Appeal of New South Wales considered an application for leave to appeal concerning a costs order made by a District Court judge. The dispute arose from an appeal by Penrith City Council (the opponent) against a decision in favour of Parks (the claimant). The primary issue before the Court of Appeal was whether the District Court judge's order for solicitor-client costs was valid, or if it was inconsistent with provisions of the *Legal Profession Act 1987* (NSW).

The Court was required to determine whether an order for solicitor-client costs made under the District Court rules was inconsistent with the provisions of Part 11 Division 5B of the *Legal Profession Act 1987*. The Court also considered whether a *Calderbank* offer made pending the appeal should result in enhanced costs on appeal.

Giles JA, Cripps AJA and McClellan AJA held that the District Court rules, which permitted orders for solicitor-client costs, were not inconsistent with Part 11 Division 5B of the *Legal Profession Act 1987*. They reasoned that the Act did not preclude such orders and that the rules provided a mechanism for their making. The Court found no basis to enhance costs on appeal due to the *Calderbank* offer.

The Court of Appeal refused leave to appeal the judge's costs order. It ordered that the opponent pay the claimant's costs of the appeal and, if otherwise entitled, that the opponent have an indemnity certificate pursuant to s 6 of the *Suitors Fund Act 1951* (NSW).