Penrith Rugby League Club Ltd Trading As Cardiff Panthers v Elliot (No 2)

The appeal concerned an application for indemnity costs following a trial in the District Court of New South Wales. The appellant, Penrith Rugby League Club Ltd trading as Cardiff Panthers, sought to recover its costs of the trial on an indemnity basis from the respondent, Elliot, in circumstances where the appellant had been successful on appeal after an initial judgment at trial had been awarded against it.

The central legal issue before the Court of Appeal was whether the respondent should be ordered to pay the appellant's costs of the trial on an indemnity basis, pursuant to rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW). This rule allows for the award of indemnity costs where a party has made a valid offer of compromise that was not accepted, and the ultimate outcome of the proceedings is less favourable to the party who rejected the offer than the terms of the offer.

The Court found that the appellant had made a valid offer of compromise on 29 October 2008. The trial judge had awarded damages against the appellant, but the Court of Appeal subsequently allowed the appeal, finding in favour of the appellant. As the outcome of the trial was less favourable to the respondent than the terms of the appellant's offer of compromise, the Court determined that the respondent should pay the appellant's costs of the trial on an indemnity basis from the date the offer was made. The Court set aside the previous costs order and ordered that the respondent pay the appellant's costs on a party and party basis until 29 October 2008, and on an indemnity basis thereafter.