A F Concrete Pumping Pty Ltd v Ryan (No 2) [2015] NSWCA 10

A F Concrete Pumping Pty Ltd v Ryan (No 2) [2015] NSWCA 10

The primary application for indemnity costs for the whole appeal was refused because the appellant's costs appeal was not so obviously hopeless as to justify a special costs order. The alternative order was made because it was not opposed in light of GIO's settlement offer of 6 September 2013. The appellant's objections to particular directions hearing costs were matters for costs assessment, not determination by the Court on the motion.

Jurisdiction
Australia
Judgment Date
12 February 2015
Procedural Posture
Costs / Third Respondent's Notice of Motion Seeking Variation of Costs Order Under UCPR R 36.16(1), Determined on the Papers
Outcome
Third respondent's notice of motion allowed in part; order 8 varied; remainder dismissed with no order as to costs of the motion.
Legal Topics
['indemnity Costs' 'variation of Orders' 'costs Assessment' 'settlement Offer']
['civil Procedure' 'costs'] ['indemnity Costs' 'variation of Orders' 'costs Assessment' 'settlement Offer']

Case Brief

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Procedural Posture

Costs / Third Respondent's Notice of Motion Seeking Variation of Costs Order Under UCPR R 36.16(1), Determined on the Papers

Legal Issues

  1. 1 ["Whether order 8 made on 10 October 2014 should be varied so that the appellant pay the third respondent's costs on an indemnity basis." "Whether the appellant's costs appeal was not fairly arguable and without merit so as to justify a special costs order." 'Whether disputed costs of directions hearings said to have been unreasonably incurred should be excluded by the Court or dealt with on assessment.']

Ratio Decidendi

The primary application for indemnity costs for the whole appeal was refused because the appellant's costs appeal was not so obviously hopeless as to justify a special costs order. The alternative order was made because it was not opposed in light of GIO's settlement offer of 6 September 2013. The appellant's objections to particular directions hearing costs were matters for costs assessment, not determination by the Court on the motion.

Court Disposition

Third respondent's notice of motion allowed in part; order 8 varied; remainder dismissed with no order as to costs of the motion.

Orders

  • ["Vary order 8 made on 10 October 2014 by ordering the appellant to pay the third respondent's costs of the appeal and of the summons seeking leave to appeal on the ordinary basis until 6 September 2013 and on an indemnity basis thereafter." "Otherwise dismiss the third respondent's notice of motion filed on 21...