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

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

An order for indemnity costs was justified from the date of service of the valid offer of compromise, as the offer complied with procedural rules, included a genuine element of compromise (the respondents foregoing already-incurred costs), and was not undermined by ambiguity in timing. The appeal was not so hopeless as to independently warrant indemnity costs.

Jurisdiction
Australia
Judgment Date
23 May 2013
Procedural Posture
Appeal / Costs Determination After Appeal Dismissed
Outcome
Appellants ordered to pay respondents' costs of the appeal—on the ordinary basis up to and including 5 July 2012, and on the indemnity basis from 5 July 2012 onward.
Legal Topics
['costs' 'indemnity Costs' 'offers of Compromise']
['civil Procedure'] ['costs' 'indemnity Costs' 'offers of Compromise']

Case Brief

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Procedural Posture

Appeal / Costs Determination After Appeal Dismissed

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded after dismissal of appeal' 'Whether the offer of compromise was valid and compliant with procedural rules' 'Whether the appeal was hopeless such that indemnity costs are warranted']

Ratio Decidendi

An order for indemnity costs was justified from the date of service of the valid offer of compromise, as the offer complied with procedural rules, included a genuine element of compromise (the respondents foregoing already-incurred costs), and was not undermined by ambiguity in timing. The appeal was not so hopeless as to independently warrant indemnity costs.

Court Disposition

Appellants ordered to pay respondents' costs of the appeal—on the ordinary basis up to and including 5 July 2012, and on the indemnity basis from 5 July 2012 onward.

Orders

  • ["Appellants to pay respondents' costs of the appeal to be assessed up to and including 5 July 2012 on the ordinary basis, and from 5 July 2012 on the indemnity basis."]