Segboer v A J Richardson Properties Pty Limited (No 2)

[2012] NSWCA 372

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Segboer & Anor v A J Richardson Properties Pty Limited & Anor (No 2) [2012] NSWCA 372

Hearing dates:

On the papers

Decision date:

15 November 2012

Before:

Allsop P
Campbell JA
Sackville AJA

Decision:

In lieu of Order 2 made on 14 August 2012, make the following Orders:

2AThe appellants pay the first respondent's costs of the appeal up to and including 19 March 2012 on the ordinary basis.

2BThe appellants pay the first respondent's costs of the appeal on and from 20 March 2012 on an indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Segboer v A J Richardson Properties Pty Limited [2012] NSWCA 253

Category:

Costs

Parties:

Robert Cornelus Wilhelm Segboer (First Appellant)
Anne Janette Segboer (Second Appellant)
A J Richardson Properties Pty Ltd (First Respondent)
Bank of Western Australia Ltd (Second Respondent)

Representation:

Solicitors:
Snelgroves (Appellants)
Sagacious Legal Pty Ltd (First Respondent)
Gadens Lawyers (Second Respondent)

File Number(s):

2009/335092- 005

 Decision under appeal 

Date of Decision:

2011-07-08 00:00:00

Before:

Charteris DCJ

File Number(s):

2009/335092

judgment

1. THE COURT: The Court delivered judgment in this matter on 14 August 2012: Segboer v A J Richardson Properties Pty Limited [2012] NSWCA 253. The Court made the following orders:

1.Appeal dismissed.

2.The appellants pay the first respondent's costs of the appeal.

3.The appellants pay the second respondent's costs of the appeal and the cross-appeal on an indemnity basis.

4.The cross appeal otherwise dismissed.

1. On 24 August 2012, the first respondent filed a notice of motion seeking orders that the appellants pay the first respondent's costs of the appeal as assessed or agreed up to and including 19 March 2012 on the ordinary basis, and thereafter on an indemnity basis. The first respondent seeks these orders by reason of an Offer of Compromise served on the appellants on 19 March 2012. The Offer of Compromise was expressed to be made pursuant to Part 20, Div 4 of the Uniform Civil Procedure Rules 2005 ("UCPR").

1. By the Offer of Compromise the first respondent offered to pay its own costs of the appeal to that date, should the appeal be withdrawn. The Offer pointed out that its costs to that time included the costs of attending to preparation of the appeal indices, court attendances and preparation of written submissions. The Offer put the appellants on notice that the first respondent would be relying upon it in relation to the costs of the appeal.

1. The Offer of Compromise was expressed to remain open until 16 April 2012. The Offer was not accepted by the appellants.

1. The first respondent has filed written submissions in support of the notice of motion. The appellants were directed to file their written submissions in opposition to the notice of motion in accordance with a timetable. The Court has not received any submissions from the appellants.

1. The first respondent relies on UCPR, r 42.15A. Rule 42.15A provides as follows:

"(1)This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim concerned as favourable to the defendant, or more favourable to the defendant, than the terms of the offer.

(2)unless the court orders otherwise:

(a)the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and

(b)the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis:

(i)if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii)...".

Rule 42.15A applies to proceedings in the Court of Appeal: UCPR, r 51.1(3), (4).

1. The first respondent succeeded in all respects against the appellants on the appeal and has satisfied the terms of r 42.15A(1). Since the appellants have not put forward any basis for suggesting that the Court should "order otherwise", the first respondent is entitled to an order that the appellants pay its costs of the appeal on an indemnity basis as and from 20 March 2012: r 42.15A(2).

1. Accordingly, in lieu of Order 2 made on 14 August 2012, the following orders should be made:

2AThe appellants pay the first respondent's costs of the appeal up to and including 19 March 2012 on the ordinary basis.

2BThe appellants pay the first respondent's costs of the appeal on and from 20 March 2012 on an indemnity basis.

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Decision last updated: 15 November 2012