Vagg v McPhee (No 2)

[2013] NSWCA 126

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Vagg v McPhee (No 2) [2013] NSWCA 126

Hearing dates:

On the papers

Decision date:

23 May 2013

Before:

Basten JA at [1];
Ward JA at [12];
Tobias AJA at [25]

Decision:

Order that the appellants pay the respondents' costs of the appeal to be assessed -

(a) up to and including 5 July 2012, on the ordinary basis, and

(b) from 5 July 2012, on the 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.]

Catchwords:

COSTS - indemnity costs - whether appeal hopeless - whether offer of compromise valid

Legislation Cited:

Uniform Civil Procedural Rules 2005

Cases Cited:

Baltic Shipping Co v Dillon (1991) 22 NSWLR 1
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Bon Appetit Family Restaurant Pty Ltd v Mongey [2009] NSWCA 14
Carr-Glynn v Frearsons [1999] Ch 326
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; 81 ALR 397
Hancock v Arnold (No 2) [2009] NSWCA 19
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170
Vagg v McPhee [2013] NSWCA 29
Vieira v O'Shea (No 2) [2012] NSWCA 121

Category:

Procedural and other rulings

Parties:

Margaret Doreen Vagg (First Appellant)
Benjamin John Vagg (Second Appellant)
Julia Lillian Vagg (Third Appellant)
Cecilia Anne Vagg (Fourth Appellant)
James Gregory Vagg (Fifth Appellant)
Paul McPhee (First Respondent)
Trevor Cork (Second Respondent)
David Dunkley (Third Respondent)
Steven Nicholson (Fourth Respondent)

Representation:

Counsel:
E W Young (Appellants)
J C Kelly SC (Respondents)
Solicitors:
Turner Freeman (Appellants)
Colin Biggers & Paisley (Respondents)

File Number(s):

CA 2012/13018

 Decision under appeal 

Citation:

[2011] NSWSC 1584

Date of Decision:

2011-12-19 00:00:00

Before:

Schmidt J

File Number(s):

2009/297399 (formerly 20072 of 2009)

Judgment

1. BASTEN JA: On 22 February 2013 the Court dismissed the appeal in this proceeding: Vagg v McPhee [2013] NSWCA 29. Ordinarily, the appellants would have been ordered to pay the respondents' costs of the proceedings, to be assessed on the ordinary basis. However, on 27 February the respondents sought an order for costs to be assessed on an indemnity basis.

1. The basis for the proposed order was twofold. First, it was said that the appeal was hopeless and dismissal inevitable. Secondly, reliance was placed upon an offer of compromise dated 4 July 2012.

1. The first ground should be rejected. I agree with Tobias AJA that the case was not one in which it could…