Amaca Pty Ltd v Hicks (No 2) [2011] NSWCA 360

Amaca Pty Ltd v Hicks (No 2) [2011] NSWCA 360

The respondent's offer to accept $340,000 instead of the $354,423.19 judgment involved a real element of compromise, and because the respondent obtained a judgment no less favourable than the offer and the appellant gave no reason why the ordinary rule should not apply, the respondent was entitled to indemnity costs from 12 February 2011, including the costs of the motion.

Jurisdiction
Australia
Judgment Date
25 November 2011
Procedural Posture
Civil Appeal; Consequential Costs Orders / Motion to Vary Costs Orders After Dismissal of Appeal
Outcome
Orders made on 16 September 2011 varied; appeal dismissed; appellant ordered to pay the respondent's costs partly on the ordinary basis and partly on an indemnity basis.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'application of Uniform Civil Procedure Rules to Appeal Proceedings' 'variation of Orders']
['civil Procedure' 'costs' 'appeals'] ['offer of Compromise' 'indemnity Costs' 'application of Uniform Civil Procedure Rules to Appeal Proceedings' 'variation of Orders']

Case Brief

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Procedural Posture

Civil Appeal; Consequential Costs Orders / Motion to Vary Costs Orders After Dismissal of Appeal

Legal Issues

  1. 1 ["Whether the respondent's offer to accept $340,000 in lieu of the damages awarded involved an element of compromise for the purposes of the costs consequences under the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether the respondent was entitled to indemnity costs from the day after the offer of compromise was made, including the costs of the motion.']

Ratio Decidendi

The respondent's offer to accept $340,000 instead of the $354,423.19 judgment involved a real element of compromise, and because the respondent obtained a judgment no less favourable than the offer and the appellant gave no reason why the ordinary rule should not apply, the respondent was entitled to indemnity costs from 12 February 2011, including the costs of the motion.

Court Disposition

Orders made on 16 September 2011 varied; appeal dismissed; appellant ordered to pay the respondent's costs partly on the ordinary basis and partly on an indemnity basis.

Orders

  • ['Dismiss the appeal.' "Order the appellant to pay the respondent's costs to be assessed up to and including 11 February 2011, on the ordinary basis." "Order the appellant to pay the respondent's costs to be assessed on and from 12 February 2011, including the costs of the present motion, on an indemnity basis."]