HANCOCK v ARNOLD; DODD v ARNOLD (NO. 2) [2009] NSWCA 19

HANCOCK v ARNOLD; DODD v ARNOLD (NO. 2) [2009] NSWCA 19

The Court had power, or would dispense with procedural requirements if necessary, to consider only a special costs application, but the barrister did not establish a basis for indemnity costs. The 8 March 2004 and 29 April 2005 letters did not make it unreasonable for the solicitors to abandon the cross-claim without costs consequences, and the 30 May 2005 offer was defective because it required an unidentified release and indemnity and the barrister did not prove that the time allowed for acceptance was reasonable. No further offer supported indemnity costs on appeal, and the existing costs orders were not to be varied.

Jurisdiction
Australia
Judgment Date
20 February 2009
Procedural Posture
Consequential Orders; Costs Motion / Motion for Special Order as to Costs on Written Submissions After Appeal Judgment
Outcome
Motion dismissed; the barrister to pay the solicitors' costs of the motion.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'calderbank Offers' 'variation of Orders After Entry' 'entry of Judgment' 'uniform Civil Procedure Rules 2005 (nsw), Rr 36.11, 36.16']
['costs' 'civil Procedure'] ['offers of Compromise' 'indemnity Costs' 'calderbank Offers' 'variation of Orders After Entry' 'entry of Judgment' 'uniform Civil Procedure Rules 2005 (nsw), Rr 36.11, 36.16']

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Procedural Posture

Consequential Orders; Costs Motion / Motion for Special Order as to Costs on Written Submissions After Appeal Judgment

Legal Issues

  1. 1 ['Whether the Court had power to vary costs orders after entry of judgment where leave to make costs submissions had been granted orally but no notice of motion was filed within 14 days.' "Whether the barrister's letters contained offers of compromise sufficient to justify indemnity costs." "Whether it was unreasonable for the solicitors not to accept the barrister's offers." 'Whether the leave granted to make submissions as to costs permitted reopening the existence of costs orders or only an application for indemnity costs.']

Ratio Decidendi

The Court had power, or would dispense with procedural requirements if necessary, to consider only a special costs application, but the barrister did not establish a basis for indemnity costs. The 8 March 2004 and 29 April 2005 letters did not make it unreasonable for the solicitors to abandon the cross-claim without costs consequences, and the 30 May 2005 offer was defective because it required an unidentified release and indemnity and the barrister did not prove that the time allowed for acceptance was reasonable. No further offer supported indemnity costs on appeal, and the existing costs orders were not to be varied.

Court Disposition

Motion dismissed; the barrister to pay the solicitors' costs of the motion.

Orders

  • ['Motion dismissed.' "The barrister to pay the solicitors' costs of the motion."]