SSABR Pty Ltd v AMA Group Limited (No 2) [2024] NSWCA 201

SSABR Pty Ltd v AMA Group Limited (No 2) [2024] NSWCA 201

It was premature for the Court of Appeal to decide the costs of the proceedings at first instance because the appellants had withdrawn or lost significant claims, substantial evidence including expert evidence concerned undetermined claims, and there remained a real possibility that the appellants would not be entitled to all first instance costs. Although the Court dispensed with the requirement for a notice of motion for the application to vary the appeal costs order, the respondents had not acted unreasonably in rejecting the 11 June 2024 Offer because the offer included a substantial costs component and the ultimate judgment, interest and costs position remained uncertain.

Jurisdiction
Australia
Judgment Date
12 August 2024
Procedural Posture
Costs Application in Appeal Proceedings / On the Papers After Orders Allowing the Appeal
Outcome
Issue of costs at first instance remitted to the primary judge; application to vary the appeal costs order dismissed.
Legal Topics
['variation of Costs Order' 'indemnity Costs' 'calderbank Offer' 'remittal of Costs at First Instance' 'uniform Civil Procedure Rules 2005 (nsw), R 36.16' 'civil Procedure Act 2005 (nsw), S 14']
['civil Procedure' 'costs' 'contract'] ['variation of Costs Order' 'indemnity Costs' 'calderbank Offer' 'remittal of Costs at First Instance' 'uniform Civil Procedure Rules 2005 (nsw), R 36.16' 'civil Procedure Act 2005 (nsw), S 14']

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Procedural Posture

Costs Application in Appeal Proceedings / On the Papers After Orders Allowing the Appeal

Legal Issues

  1. 1 ["Whether the Court should determine the appellants' entitlement to costs of the proceedings at first instance or remit that issue to the primary judge." "Whether the appellants' application to vary order (6) of the Court's orders of 23 July 2024 should be entertained despite no notice of motion being filed." "Whether the respondents should pay the appellants' costs of the appeal on an ordinary basis up to 11 June 2024 and thereafter on an indemnity basis because of the 11 June 2024 Offer."]

Ratio Decidendi

It was premature for the Court of Appeal to decide the costs of the proceedings at first instance because the appellants had withdrawn or lost significant claims, substantial evidence including expert evidence concerned undetermined claims, and there remained a real possibility that the appellants would not be entitled to all first instance costs. Although the Court dispensed with the requirement for a notice of motion for the application to vary the appeal costs order, the respondents had not acted unreasonably in rejecting the 11 June 2024 Offer because the offer included a substantial costs component and the ultimate judgment, interest and costs position remained uncertain.

Court Disposition

Issue of costs at first instance remitted to the primary judge; application to vary the appeal costs order dismissed.

Orders

  • ['Remit to the primary judge the issue whether the appellants are entitled to their costs of the proceedings at first instance.' "As regards the appellants' application under UCPR, r 36.13 to vary order (6) of the orders of this Court of 23 July 2024, under s 14 of the Civil Procedure Act, dispense with the...