Fairall v Hobbs (No 2) [2017] NSWCA 133

Fairall v Hobbs (No 2) [2017] NSWCA 133

The 31 July 2014 offer did not warrant indemnity costs because it lacked compromise and was made before issues were crystallised; the 18 March 2016 offer was a genuine compromise and, at that time, the respondent had sufficient information to decide and rejection was unreasonable, justifying costs on an indemnity basis from that date. Appeal costs are not subject to indemnity as no offer of compromise was made for appeal proceedings and respondent's conduct was not unreasonable.

Jurisdiction
Australia
Judgment Date
15 June 2017
Procedural Posture
Appeal / Variation of Costs Orders Following Appeal Judgment
Outcome
Orders varied under UCPR r 36.16: respondent to pay appellants' trial costs as agreed or assessed on an ordinary basis up to 18 March 2016, and on an indemnity basis thereafter; parties to bear their own costs of the motion.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'appeal Proceedings' 'uniform Civil Procedure Rules']
['costs'] ['offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'appeal Proceedings' 'uniform Civil Procedure Rules']

Case Brief

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Procedural Posture

Appeal / Variation of Costs Orders Following Appeal Judgment

Legal Issues

  1. 1 ['Whether the appellants are entitled to indemnity costs for the trial and appeal based on offers of compromise' "Whether the respondent's rejection of offers of compromise was reasonable" 'Whether distinct proceedings and offers made below affect costs of appeal']

Ratio Decidendi

The 31 July 2014 offer did not warrant indemnity costs because it lacked compromise and was made before issues were crystallised; the 18 March 2016 offer was a genuine compromise and, at that time, the respondent had sufficient information to decide and rejection was unreasonable, justifying costs on an indemnity basis from that date. Appeal costs are not subject to indemnity as no offer of compromise was made for appeal proceedings and respondent's conduct was not unreasonable.

Court Disposition

Orders varied under UCPR r 36.16: respondent to pay appellants' trial costs as agreed or assessed on an ordinary basis up to 18 March 2016, and on an indemnity basis thereafter; parties to bear their own costs of the motion.

Orders

  • ["Order 2(b) made by the Court on 18 April 2017 varied: respondent to pay appellants' costs of trial as agreed or assessed on an ordinary basis up until 18 March 2016, and on an indemnity basis thereafter." 'Each party to pay their own costs of the motion.' "Appellants' costs of appeal in order 3 made on 18 April...