BRYMOUNT PTY. LIMITED t/a WATSON TOYOTA (ACN 003 200 459) v. CUMMINS & ANOR. YOUNG SHIRE COUNCIL v. CUMMINS & ANOR. (NO. 2) [2005] NSWCA 69

BRYMOUNT PTY. LIMITED t/a WATSON TOYOTA (ACN 003 200 459) v. CUMMINS & ANOR. YOUNG SHIRE COUNCIL v. CUMMINS & ANOR. (NO. 2) [2005] NSWCA 69

Mrs Cummins' failure to accept the Council's and Brymount's pre-trial Calderbank offers was unreasonable because the offers were made responsibly and well before trial, the cases against the appellants were not borderline, and the appellants ultimately succeeded. The appellants were therefore entitled to indemnity costs of the trial from the respective offer dates. However, they were not entitled to indemnity costs of the appeal because the offers substantially pre-dated the appeal, were not renewed or varied after the substantial District Court judgment in Mrs Cummins' favour, and appeal costs should ordinarily follow the event on a party and party basis.

Jurisdiction
Australia
Judgment Date
17 March 2005
Procedural Posture
Costs Application Following Negligence Appeals / On Papers; Post Appeal Costs Determination
Outcome
Applications for indemnity costs allowed in part; trial costs awarded on an indemnity basis from the dates of the offers, appeal costs awarded on a party and party basis, and Suitors Fund certificate orders made if the first respondent is so entitled.
Legal Topics
['calderbank Offers' 'offers of Compromise' 'indemnity Costs' 'party and Party Costs' 'appeal Costs' 'suitors Fund Certificate']
['costs' 'civil Procedure' 'negligence'] ['calderbank Offers' 'offers of Compromise' 'indemnity Costs' 'party and Party Costs' 'appeal Costs' 'suitors Fund Certificate']

Case Brief

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Procedural Posture

Costs Application Following Negligence Appeals / On Papers; Post Appeal Costs Determination

Legal Issues

  1. 1 ["Whether Mrs Cummins' non-acceptance of pre-trial Calderbank offers by Brymount and the Council was unreasonable so as to justify indemnity costs of the trial from the dates of the offers." 'Whether pre-trial Calderbank offers not renewed or revived after judgment in the District Court justified indemnity costs of the appeal.' "Whether the Court's previous costs orders should be amended to include a certificate under the Suitors Fund Act 1951 (NSW)."]

Ratio Decidendi

Mrs Cummins' failure to accept the Council's and Brymount's pre-trial Calderbank offers was unreasonable because the offers were made responsibly and well before trial, the cases against the appellants were not borderline, and the appellants ultimately succeeded. The appellants were therefore entitled to indemnity costs of the trial from the respective offer dates. However, they were not entitled to indemnity costs of the appeal because the offers substantially pre-dated the appeal, were not renewed or varied after the substantial District Court judgment in Mrs Cummins' favour, and appeal costs should ordinarily follow the event on a party and party basis.

Court Disposition

Applications for indemnity costs allowed in part; trial costs awarded on an indemnity basis from the dates of the offers, appeal costs awarded on a party and party basis, and Suitors Fund certificate orders made if the first respondent is so entitled.

Orders

  • ["Appeal No. 41169/03 (Brymount's appeal): That the first respondent pay the appellant's costs up to 27 January 2003 on a party and party basis." "Appeal No. 41169/03 (Brymount's appeal): That the first respondent pay the appellant's costs in respect of the trial from 28 January 2003 on an indemnity basis." "Appeal...