Council of The City of Botany Bay v Michos [2013] NSWCA 244

Council of The City of Botany Bay v Michos [2013] NSWCA 244

Leave to appeal was refused because, although the primary judge's reasoning on r 20.26 UCPR was incorrect after Whitney v Dream Developments, the indemnity costs order was arguably supportable under s 98(1)(c) of the Civil Procedure Act 2005 and therefore did not involve a clear injustice; the construction issue was no longer uncertain, no broader issue of principle or general importance remained, and the approximately $51,000 amount in issue was disproportionate to further appellate litigation. Leave to cross-appeal was refused because no appealable error in limiting indemnity costs to the period from 25 July 2012 was shown, no sufficient basis was demonstrated for admitting the later...

Jurisdiction
Australia
Judgment Date
24 July 2013
Procedural Posture
Application for Leave to Appeal and Application for Leave to Cross Appeal Concerning Costs Orders / Court of Appeal Leave Applications
Outcome
The application for leave to appeal and the application for leave to cross-appeal were dismissed; indemnity costs of the leave application were refused.
Legal Topics
['leave to Appeal' 'leave to Cross Appeal' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'proportionality of Costs' 'fresh Evidence on Appeal']
['civil Procedure' 'appeals' 'costs' 'nuisance'] ['leave to Appeal' 'leave to Cross Appeal' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'proportionality of Costs' 'fresh Evidence on Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Application for Leave to Cross Appeal Concerning Costs Orders / Court of Appeal Leave Applications

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from an indemnity costs order where the proposed appeal concerned the construction of r 20.26 Uniform Civil Procedure Rules 2005 and the amount in issue was below the statutory threshold.' "Whether the primary judge's indemnity costs order, although reasoned on an erroneous construction of r 20.26 UCPR after Whitney v Dream Developments Pty Ltd [2013] NSWCA 188, was supportable under s 98(1)(c) of the Civil Procedure Act 2005." 'Whether leave to cross-appeal should be granted to seek indemnity costs for the whole proceedings or from an earlier date based on evidence obtained after the costs decision.' 'Whether the respondents should receive indemnity costs of the leave application because the applicant rejected a Calderbank offer.']

Ratio Decidendi

Leave to appeal was refused because, although the primary judge's reasoning on r 20.26 UCPR was incorrect after Whitney v Dream Developments, the indemnity costs order was arguably supportable under s 98(1)(c) of the Civil Procedure Act 2005 and therefore did not involve a clear injustice; the construction issue was no longer uncertain, no broader issue of principle or general importance remained, and the approximately $51,000 amount in issue was disproportionate to further appellate litigation. Leave to cross-appeal was refused because no appealable error in limiting indemnity costs to the period from 25 July 2012 was shown, no sufficient basis was demonstrated for admitting the later...

Court Disposition

The application for leave to appeal and the application for leave to cross-appeal were dismissed; indemnity costs of the leave application were refused.

Orders

  • ['The application for leave to appeal is dismissed.' 'The application for leave to cross-appeal is dismissed.' 'There is no order as to the costs of the application for leave to cross-appeal.' "The applicant otherwise pay the respondents' costs in this Court."]