Bluth v Boyded Industries Pty Ltd (No 2) [2024] NSWCA 194

Bluth v Boyded Industries Pty Ltd (No 2) [2024] NSWCA 194

The 11 April 2024 letter gave Boyded sufficient notice of the relief HWLE sought and contained the substance of what a formal notice of motion would have contained; because no prejudice to Boyded was shown, it was appropriate under s 14 of the Civil Procedure Act 2005 (NSW) to dispense with the UCPR 18.2(1) filing requirement for HWLE's UCPR 36.16(3A) application. HWLE obtained a judgment on Boyded's claim no less favourable than the terms of its offers, and Boyded did not establish that the Court should order otherwise under UCPR 42.15A. The proceedings below costs order was therefore varied to ordinary costs up to 16 August 2022 and indemnity costs thereafter. However, because the...

Jurisdiction
Australia
Judgment Date
16 August 2024
Procedural Posture
Costs Application in Appeal / On the Papers Application to Vary Costs Orders Made on 4 April 2024
Outcome
Application allowed in part; notice of motion requirement dispensed with and the costs order for the proceedings below varied, but the appeal and cross-appeal costs order was not varied to indemnity costs.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'variation of Costs Orders' 'notice of Motion' 'dispensing With Rules of Court' 'appeal Costs']
['civil Procedure' 'costs'] ['offers of Compromise' 'indemnity Costs' 'variation of Costs Orders' 'notice of Motion' 'dispensing With Rules of Court' 'appeal Costs']

Case Brief

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Procedural Posture

Costs Application in Appeal / On the Papers Application to Vary Costs Orders Made on 4 April 2024

Legal Issues

  1. 1 ["Whether HWLE's application to vary the costs orders was made within the time prescribed by UCPR 36.16(3A)." 'Whether the Court should dispense with the requirement in UCPR 18.2(1) for filing a notice of motion.' 'Whether HWLE was entitled under UCPR 42.15A to indemnity costs in the proceedings below after its offer of compromise dated 16 August 2022.' 'Whether the costs of the appeal and cross-appeal should be varied to indemnity costs where the offers of compromise were not renewed between trial and appeal.']

Ratio Decidendi

The 11 April 2024 letter gave Boyded sufficient notice of the relief HWLE sought and contained the substance of what a formal notice of motion would have contained; because no prejudice to Boyded was shown, it was appropriate under s 14 of the Civil Procedure Act 2005 (NSW) to dispense with the UCPR 18.2(1) filing requirement for HWLE's UCPR 36.16(3A) application. HWLE obtained a judgment on Boyded's claim no less favourable than the terms of its offers, and Boyded did not establish that the Court should order otherwise under UCPR 42.15A. The proceedings below costs order was therefore varied to ordinary costs up to 16 August 2022 and indemnity costs thereafter. However, because the...

Court Disposition

Application allowed in part; notice of motion requirement dispensed with and the costs order for the proceedings below varied, but the appeal and cross-appeal costs order was not varied to indemnity costs.

Orders

  • ['Dispense with the requirement in Uniform Civil Procedure Rules 2005 (NSW), r 18.2(1) for the filing of a notice of motion by the appellant / cross-respondent (HWLE) in respect of its application under r 36.16(3A) to vary the costs orders made on 4 April 2024.' 'In relation to the proceedings below, order that...