Salmon v Osmond (No 2)

Case [2015] NSWCA 131


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Salmon v Osmond (No 2) [2015] NSWCA 131
Hearing dates:On the papers
Decision date: 18 May 2015
Before: Beazley P;
McColl JA;
Gleeson JA
Decision:

(1)   Vary order 5 of the judgment of this Court of 10 March 2015 as follows:

 

“5.   In lieu of order 5 in the judgment of the court below of 17 September 2013, order that the second respondent, Donna Maree Peters, pay the appellants’ costs of proceedings in the court below, on the ordinary basis up to and including 8 January 2013 and on an indemnity basis as and from 9 January 2013.”

 

(2)   Vary order 6 of the judgment of the court below of 17 September 2013 as follows:

 

“6.   The costs referred to in (5) shall be determined as 20 per cent of the costs incurred by the estate in defending the proceedings brought by the first plaintiff and the third plaintiff and shall be credited to the amounts to be distributed from the estate to the first defendant and second defendant in proportion to the amounts paid from their share of the estate to satisfy order (7).”

 (3)   The first and second respondents should pay the costs of the appellants’ notice of motion filed 23 March 2015.
Catchwords: PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005, rr 36.16, 36.17 – slip rule – whether no order as to costs prior to offer of compromise
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(3A), 36.17
Category:Procedural and other rulings
Parties: Michael Augustine Salmon, Esmae Frances Salmon and Sue Frances Salmon (Appellants) 
Kerryn Therese Osmond (First Respondent) 
Donna Maree Peters (Second Respondent)
Representation:

Counsel:
D A Smallbone (Appellants)
M K Meek SC; N C T Bilinsky (Respondents) 

  Solicitors:
RJI Legal (Appellants)
Peter Evans & Associates (Respondents)
File Number(s):CA 2013/245425
 Decision under appeal 
Court or tribunal:
Supreme Court
Citation:
Peters v Salmon [2013] NSWSC 953
Peters v Salmon (No 2) [2013] NSWSC 1071
Date of Decision:
19 July 2013; 17 September 2013
Before:
Ball J
File Number(s):
2012/60490

Judgment

  1. THE COURT: This Court delivered its principal judgment in this matter on 10 March 2015: Salmon v Osmond [2015] NSWCA 42. The appellants were substantially successful in the appeal and costs orders were made in their favour. This included making the following costs order (order 5) having regard to a Calderbank offer of compromise that had been made to the second respondent, Donna Maree Peters (Donna), which had not been accepted:

“5.   Order that the second respondent, Donna Maree Peters, pay the respondents’ costs of proceedings in the court below on an indemnity basis as and from 9 January 2013.”

  1. By notice of motion filed 23 March 2015, the appellants sought that order 5 be varied pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.17, known as the “slip rule”. Rule 36.17 provides as follows:

“If there is a clerical mistake, or an error arising…

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Salmon v Osmond (No 2) [2015] NSWCA 131
Case
[2015] NSWCA 131
Decision Date

CaseChat Overview and Summary

The case of *Salmon v Osmond (No 2)* concerned an application to vary orders made by the Court of Appeal of New South Wales regarding costs. The dispute arose from earlier proceedings where an offer of compromise had been made. The appellants sought to vary the original costs orders to reflect the effect of this offer.

The primary legal issue before the Court of Appeal was whether the "slip rule" under rules 36.16 and 36.17 of the *Uniform Civil Procedure Rules 2005* (NSW) could be invoked to alter an order as to costs made prior to an offer of compromise being considered. Specifically, the court had to determine if it had the power to amend its previous costs order to reflect the consequences of the offer of compromise, which had not been taken into account in the initial judgment.

The Court of Appeal reasoned that the slip rule was intended to correct errors arising from oversight or misapprehension, and that the failure to consider the offer of compromise at the time of the original costs order constituted such an error. The court applied the principle that where an offer of compromise has been made and not accepted, and the judgment obtained is less favourable than the offer, the party making the offer is generally entitled to costs on an indemnity basis from the date of the offer. The court found that the original order had inadvertently failed to give effect to this principle.

Consequently, the Court of Appeal varied the original costs order. It ordered that the second respondent pay the appellants' costs of the proceedings below on the ordinary basis up to 8 January 2013 and on an indemnity basis thereafter. Further, it specified how these costs were to be determined and credited against distributions from the estate. The first and second respondents were also ordered to pay the costs of the appellants' notice of motion.

Orders

Orders of the court

(1) Vary order 5 of the judgment of this Court of 10 March 2015 as follows:

“5. In lieu of order 5 in the judgment of the court below of 17 September 2013, order that the second respondent, Donna Maree Peters, pay the appellants’ costs of proceedings in the court below, on the ordinary basis up to and including 8 January 2013 and on an indemnity basis as and from 9 January 2013.”

(2) Vary order 6 of the judgment of the court below of 17 September 2013 as follows:

“6. The costs referred to in (5) shall be determined as 20 per cent of the costs incurred by the estate in defending the proceedings brought by the first plaintiff and the third plaintiff and shall be credited to the amounts to be distributed from the estate to the first defendant and second defendant in proportion to the amounts paid from their share of the estate to satisfy order (7).”

(3) The first and second respondents should pay the costs of the appellants’ notice of motion filed 23 March 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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