1. Vary order 1 made on 1 July 2014 to order that the appellant pay the respondents' costs of the proceedings on an ordinary basis until 1 May 2014, and on an indemnity basis thereafter.
2. Order that the appellant pay the respondents' costs of the notice of motion filed 9 July 2014.
[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.]
Catchwords:
COSTS - offer of compromise - "walk-away" offer - substantial compromise in foregoing costs - special costs order made
THE COURT: On 1 July 2014, the Court dismissed these appeals: Taheri v Vitek [2014] NSWCA 209. The successful respondents, by notices of motion filed 9 July 2014, sought a variation of the costs order in each appeal, reflecting offers of compromise made by them which were not accepted by the appellant.
The notices of motion are supported by affidavits sworn by the respondents' solicitor on 17 July and 18 August 2014. The Court has the benefit of written submissions filed 31 July and 7 August 2014.
A threshold question of power arises in light of r 36.16(3A) and (3C) of the Uniform Civil Procedure Rules 2005 (NSW). The respondents' notices of motion were filed within the 14 days specified by the rules, but contained an obvious error, which was corrected by amended notices of motion filed outside that period. Paragraph 1 of each notice of motion, as originally filed, sought:
"An order pursuant to Part 36 Rule 16 of the Uniform Civil Procedure Rules 2005 (NSW) vacating order 2 made on 1 July 2014."
However, order 1 made in each of the appeals decided on 1 July 2014 was "Appeals dismissed, with costs". Order 2 related to a notice…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Taheri v Vitek (No 2) [2014] NSWCA 344
Case
[2014] NSWCA 344
Decision Date
CaseChat Overview and Summary
In *Taheri v Vitek (No 2)*, the New South Wales Court of Appeal considered an application to vary an earlier costs order. The dispute concerned the appropriate basis for awarding costs following a substantial compromise in proceedings.
The primary legal issue before the Court of Appeal was whether to vary an existing costs order to reflect a "walk-away" offer made by the respondents. This offer, which involved the respondents foregoing their entitlement to costs, was argued to be a substantial compromise that warranted a shift in the costs order from an ordinary basis to an indemnity basis from a certain date.
The Court of Appeal reasoned that the respondents' offer constituted a significant compromise, demonstrating a willingness to forgo substantial costs to achieve finality. Applying the principles governing costs orders in the context of offers of compromise, the Court found that the respondents' conduct justified a departure from the usual order. The Court concluded that it was appropriate to vary the original order to reflect the respondents' concession.
Accordingly, the Court of Appeal varied the earlier order to stipulate that the appellant pay the respondents' costs of the proceedings on an ordinary basis until 1 May 2014, and on an indemnity basis thereafter. The Court also ordered that the appellant pay the respondents' costs of a specific notice of motion filed on 9 July 2014.
Orders
Orders of the court
In each appeal:
1. Vary order 1 made on 1 July 2014 to order that the appellant pay the respondents' costs of the proceedings on an ordinary basis until 1 May 2014, and on an indemnity basis thereafter.
2. Order that the appellant pay the respondents' costs of the notice of motion filed 9 July 2014.
[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.]