Capogreco v Rogerson [2016] NSWCA 61

Capogreco v Rogerson [2016] NSWCA 61

Leave to appeal was refused because the primary judge was entitled to treat the issues as inextricably intertwined and to make a broad overall apportionment of costs; the assessment was a matter of impression for the trial judge, adequate reasons were given, and it would be impractical and wrong in principle to require later disaggregation of costs between causes of action. The Calderbank letter did not justify indemnity costs because it required withdrawal and payment of all costs to date and therefore did not contain a true compromise.

Jurisdiction
Australia
Judgment Date
23 March 2016
Procedural Posture
Application for Leave to Appeal Against Costs Orders / Court of Appeal of the Supreme Court of New South Wales
Outcome
Application for leave to appeal dismissed; applicants ordered to pay the first respondent's costs on a party and party basis.
Legal Topics
['leave to Appeal' 'apportionment of Costs' 'issues Based Costs Orders' 'adequacy of Reasons' 'calderbank Offer' 'indemnity Costs']
['civil Procedure' 'costs' 'appeals'] ['leave to Appeal' 'apportionment of Costs' 'issues Based Costs Orders' 'adequacy of Reasons' 'calderbank Offer' 'indemnity Costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Costs Orders / Court of Appeal of the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from costs orders apportioning costs after partial success at trial.' 'Whether the primary judge erred by making an overall apportionment of costs rather than awarding costs by reference to each issue or cause of action.' 'Whether the primary judge gave adequate reasons for the costs apportionment.' 'Whether a costs assessor could or should allocate costs after the event between intertwined causes of action.' "Whether the first respondent's Calderbank letter contained a genuine offer of compromise sufficient to justify indemnity costs."]

Ratio Decidendi

Leave to appeal was refused because the primary judge was entitled to treat the issues as inextricably intertwined and to make a broad overall apportionment of costs; the assessment was a matter of impression for the trial judge, adequate reasons were given, and it would be impractical and wrong in principle to require later disaggregation of costs between causes of action. The Calderbank letter did not justify indemnity costs because it required withdrawal and payment of all costs to date and therefore did not contain a true compromise.

Court Disposition

Application for leave to appeal dismissed; applicants ordered to pay the first respondent's costs on a party and party basis.

Orders

  • ['Dismiss the application for leave to appeal.' "The applicants to pay the first respondent's costs."]