Carter v Mehmet (No 3) [2022] NSWCA 64

Carter v Mehmet (No 3) [2022] NSWCA 64

No indemnity costs order should be made in favour of the appellants, as the offers were made at an early stage of the proceedings when the issues were not yet adequately defined, and there was reasonable justification for the respondents' non-acceptance. The claim and cross-claim offers were also expressed separately, creating difficulty and complication if only one offer was accepted. For appeal costs, no relevant offer was made in relation to the appeal proceedings, hence the usual approach applies.

Parties
First Appellant: Murray John Carter; Second Appellant: The Wheel Resort Pty Ltd; Third Appellant: Cathscompany Pty Ltd; First Respondent: Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust; Second Respondent: Cameron Mehmet t/as ATF Cameron Mehmet Testamentary Trust; Third Respondent: Errol Mehmet t/as ATF Errol J Mehmet Testamentary Trust; Fourth Respondent: Cheers Aviation Pty Ltd t/as ATF KMCG Investment Trust; Fifth Respondent: Matthew Timothy Cheers
Jurisdiction
Australia
Judgment Date
21 April 2022
Procedural Posture
Consequential Orders / Post Judgment Application for Costs Orders
Outcome
Paragraphs 2 and 3 of the notice of motion dismissed; no order as to costs of paragraphs 2 and 3 of the notice of motion.
Legal Topics
Costs, Offer of Compromise, Party/party Costs, Indemnity Costs, Appeal Procedure
Civil Procedure Costs Offer of Compromise Party/party Costs Indemnity Costs Appeal Procedure

Case Brief

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Parties

Murray John Carter

First Appellant

The Wheel Resort Pty Ltd

Second Appellant

Cathscompany Pty Ltd

Third Appellant

Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust

First Respondent

Cameron Mehmet t/as ATF Cameron Mehmet Testamentary Trust

Second Respondent

Errol Mehmet t/as ATF Errol J Mehmet Testamentary Trust

Third Respondent

Cheers Aviation Pty Ltd t/as ATF KMCG Investment Trust

Fourth Respondent

Matthew Timothy Cheers

Fifth Respondent

Procedural Posture

Consequential Orders / Post Judgment Application for Costs Orders

Legal Issues

  1. 1 Whether appellants are entitled to indemnity costs as a result of an offer of compromise served during proceedings below
  2. 2 Whether separate offers to compromise cross-claim and claim comply with Uniform Civil Procedure Rules 2005 (NSW)
  3. 3 Whether appeal costs should follow the event or be influenced by offers made at first instance

Ratio Decidendi

No indemnity costs order should be made in favour of the appellants, as the offers were made at an early stage of the proceedings when the issues were not yet adequately defined, and there was reasonable justification for the respondents' non-acceptance. The claim and cross-claim offers were also expressed separately, creating difficulty and complication if only one offer was accepted. For appeal costs, no relevant offer was made in relation to the appeal proceedings, hence the usual approach applies.

Court Disposition

Paragraphs 2 and 3 of the notice of motion dismissed; no order as to costs of paragraphs 2 and 3 of the notice of motion.

Orders

  • Dismiss paragraphs 2 and 3 of the notice of motion dated 9 December 2021
  • No order as to costs of paragraphs 2 and 3 of the notice of motion