Macourt v Clark (No 2) [2012] NSWCA 411

Macourt v Clark (No 2) [2012] NSWCA 411

Dr Macourt was entitled to full costs both at first instance and on appeal as the telephone expenses issue, while separable, was not dominant and the substantial success was his. He was entitled to indemnity costs from 13 July 2009 due to an unaccepted Offer of Compromise, and no exceptional circumstances justified departing from this rule. Restitutionary orders and interest were appropriate given the reversal of the previous judgment.

Jurisdiction
Australia
Judgment Date
13 December 2012
Procedural Posture
Appeal / Post Judgment Orders and Costs Determination
Outcome
Appeal allowed, cross-appeal dismissed. Orders set aside. Appellant awarded full costs and restitution of sums paid under prior judgment.
Legal Topics
['costs' 'indemnity Costs' 'restitution' 'interest on Judgment' 'offer of Compromise']
['civil Procedure'] ['costs' 'indemnity Costs' 'restitution' 'interest on Judgment' 'offer of Compromise']

Case Brief

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Procedural Posture

Appeal / Post Judgment Orders and Costs Determination

Legal Issues

  1. 1 ["Whether the Respondent should pay 100% or only 90% of the Appellant's costs of proceedings and appeal" 'Whether costs should be on indemnity basis from 13 July 2009' "Whether the Appellant's Offer of Compromise warranted indemnity costs"]

Ratio Decidendi

Dr Macourt was entitled to full costs both at first instance and on appeal as the telephone expenses issue, while separable, was not dominant and the substantial success was his. He was entitled to indemnity costs from 13 July 2009 due to an unaccepted Offer of Compromise, and no exceptional circumstances justified departing from this rule. Restitutionary orders and interest were appropriate given the reversal of the previous judgment.

Court Disposition

Appeal allowed, cross-appeal dismissed. Orders set aside. Appellant awarded full costs and restitution of sums paid under prior judgment.

Orders

  • ['Judgment for the Appellant against the Respondent on the claim and cross-claim in the sum of $315,255.04 (including interest up to 8 November 2011, and after setting off the amount including interest to which the Respondent is entitled against the Appellant).' 'Interest be paid under s 100 of the Civil Procedure...