Newcastle City Council v Wieland (No 2) [2009] NSWCA 246

Newcastle City Council v Wieland (No 2) [2009] NSWCA 246

The majority held that indemnity costs should not be ordered. The condition imposed when leave to appeal was granted was relevant to fairness; the first Calderbank offer was effectively superseded by the appellants' acceptance of that condition, and the concessions in the offers were small or not a significant compromise. Having regard to the public interest nature of the appeal, the primary judge's error, the rejected arguments, the leave condition and the limited advantage offered by the Calderbank offers, it was not shown that the appellants acted unreasonably in refusing the offers or that indemnity costs would be fair.

Jurisdiction
Australia
Judgment Date
18 August 2009
Procedural Posture
Application for Indemnity Costs / Court of Appeal; on the Papers; After Appeal Dismissed
Outcome
Application for indemnity costs dismissed with costs.
Legal Topics
['indemnity Costs' 'calderbank Offers' 'costs Follow the Event' 'leave to Appeal Condition' 'court Ordered Mediation Costs']
['procedure' 'costs'] ['indemnity Costs' 'calderbank Offers' 'costs Follow the Event' 'leave to Appeal Condition' 'court Ordered Mediation Costs']

Case Brief

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Procedural Posture

Application for Indemnity Costs / Court of Appeal; on the Papers; After Appeal Dismissed

Legal Issues

  1. 1 ["Whether the appellants should pay the respondents' costs of the summons for leave to appeal and the appeal on an indemnity basis because Calderbank offers were not accepted." "Whether the appellants acted unreasonably in not accepting the respondents' Calderbank offers." 'Whether the grant of leave to appeal on condition that the appellants pay the costs of both sides of the appeal in any event affected the fairness of ordering indemnity costs.']

Ratio Decidendi

The majority held that indemnity costs should not be ordered. The condition imposed when leave to appeal was granted was relevant to fairness; the first Calderbank offer was effectively superseded by the appellants' acceptance of that condition, and the concessions in the offers were small or not a significant compromise. Having regard to the public interest nature of the appeal, the primary judge's error, the rejected arguments, the leave condition and the limited advantage offered by the Calderbank offers, it was not shown that the appellants acted unreasonably in refusing the offers or that indemnity costs would be fair.

Court Disposition

Application for indemnity costs dismissed with costs.

Orders

  • ['Application for indemnity costs dismissed with costs.']