Stuart Pty Ltd v Condor Commercial Insulation Pty Ltd (No 2)

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New South Wales


Court of Appeal


CITATION: Stuart Pty Limited v Condor Commercial Insulation Pty Limited (No 2) [2006] NSWCA 379
HEARING DATE(S): On written submissions
 
JUDGMENT DATE: 

20 December 2006
JUDGMENT OF: Beazley JA at 1; Ipp JA at 1; Tobias JA at 1
DECISION: The parties are to bring in short minutes of order to accord with these reasons and with the reasons in Stuart Pty Limited v Condor Commercial Insulation Pty Limited [2006] NSWCA 334, to be filed in the Registry by 22 January 2007.
CATCHWORDS: COSTS – application by respondent for indemnity costs – whether some good cause to depart from ordinary rule of costs following the event – offer of compromise made by respondent prior to trial but not later renewed – appellant abandoned certain arguments on appeal
LEGISLATION CITED: District Court Rules 1973 (NSW) Pt 19A, Pt 39A
Supreme Court Rules 1970 (NSW) Pt 52A r 11
Uniform Civil Procedure Rules 2005 (NSW) r 42.1
CASES CITED: Baresic v Slingshot Holdings Pty Limited & Anor (No 2) [2005] NSWCA 160
Brymount Pty Limited t/as Watson Toyota v Cummins & Anor (No 2) [2005] NSWCA 69
Fotheringham v Fotheringham [No 2] (1999) 46 NSWLR 194; [1999] NSWCA 21
Hadley v Baxendale (1854) 9 Ex 341
Moore v Woodforth (No 2) [2003] NSWCA 46
Oshlack v Richmond River Council (1998) 193 CLR 72
South Sydney Council v Morris (No 3) [2001] NSWCA 200
PARTIES: Stuart Pty Limited (Appellant)
Condor Commercial Insulation Pty Limited (Respondent)
FILE NUMBER(S): CA 40455/05
COUNSEL: J West QC; J Stephenson (Appellant)
B Coles QC; P Barham (Respondent)
SOLICITORS: Watson Mangioni (Appellant)
Turnbull Bowles (Respondent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 7817/1999
LOWER COURT JUDICIAL OFFICER: Murrell DCJ
LOWER COURT DATE OF DECISION: 6 May 2005

- 5 -


                          CA 40455/05

                          BEAZLEY JA
                          IPP JA
                          TOBIAS JA

                          20 December 2006

STUART PTY LIMITED


v


CONDOR COMMERCIAL INSULATION PTY LIMITED (No 2)

Judgment

1 THE COURT: The Court delivered judgment in this matter on 28 November 2006, in which it made an order dismissing the appeal. Prior to the delivery of judgment, the Court was requested by the solicitors for the respondent not to make an order for costs without the parties having an opportunity of making submissions in relation to costs. The Court thus directed the parties to file written submissions in relation to costs. The parties have now provided those written submissions. Relevantly, the respondent seeks an order for indemnity costs.

2 The appellant concedes that as it was unsuccessful on the appeal, costs should follow the event and that it should pay the respondent’s costs of the appeal other than costs relating to the Notice of Contention.

3 The respondent, for its part, concedes that in the usual course, some adjustment to any costs order would need to take account of the fact that it did not proceed with its Notice of Contention. It contends, however, that it otherwise should have an indemnity costs…

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Details
Case
[2006] NSWCA 379
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the respondent, Condor Commercial Insulation Pty Ltd, for indemnity costs of the appeal heard by Beazley JA, Ipp JA, and Tobias JA in the New South Wales Court of Appeal. The dispute arose from an earlier decision in *Stuart Pty Limited v Condor Commercial Insulation Pty Limited* [2006] NSWCA 334, where the appellant, Stuart Pty Ltd, had abandoned certain arguments on appeal.

The primary legal issue before the Court of Appeal was whether there was "good cause" to depart from the ordinary rule that costs follow the event, thereby justifying an order for indemnity costs in favour of the respondent. This question was considered in light of an offer of compromise made by the respondent prior to the trial, which had not been renewed subsequently.

The Court of Appeal determined that there was no good cause to depart from the ordinary rule. While acknowledging the respondent's offer of compromise, the Court found that the appellant's abandonment of certain arguments on appeal did not, in itself, constitute sufficient reason to award indemnity costs. The Court reasoned that the offer of compromise, not having been renewed, did not provide a clear basis for penalising the appellant in costs. Consequently, the Court concluded that the ordinary rule should apply, meaning the appellant would generally be liable for the respondent's costs.

The parties were directed to bring in short minutes of order to accord with the reasons of the Court of Appeal and the earlier decision in *Stuart Pty Limited v Condor Commercial Insulation Pty Limited* [2006] NSWCA 334, to be filed by 22 January 2007.

Orders

Orders of the court

1. The parties are to bring in short minutes of order to accord with these reasons and with the reasons in Stuart Pty Limited v Condor Commercial Insulation Pty Limited [2006] NSWCA 334, to be filed in the Registry by 22 January 2007.

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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