Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2)

The dispute before the Court of Appeal of New South Wales concerned an application to vary an earlier costs order made following a trial. The parties were the Roads and Traffic Authority of NSW (the appellant) and Refrigerated Roadways Pty Ltd (the respondent). The core of the application was whether indemnity costs should be ordered against the respondent, and from what date, in relation to the trial and an appeal.

The court was required to determine several key legal issues. Firstly, whether indemnity costs for the trial ought to be ordered against the respondent, particularly in light of a "walk away" offer made during the trial. Secondly, if indemnity costs were to be ordered, from what date they should commence, considering the respondent's opportunity to examine certain evidence at the time the offer was made. Thirdly, whether indemnity costs should be ordered for the appeal, especially given the respondent's failure to make a fresh offer or renew a previous offer of compromise during the appeal proceedings. Finally, the court considered the statutory authority to reopen entered orders and any applicable time limits on such variations.

The court reasoned that the respondent should bear the appellant's costs on an indemnity basis from the date an offer of compromise expired, as this represented a point at which the respondent's conduct warranted such an order. However, the court declined to order indemnity costs for the appeal, finding that the circumstances did not justify such an exceptional measure. The court also addressed the respondent's Notice of Motion, ordering the respondent to pay 50% of the appellant's costs associated with that motion.