Aysun Pty Ltd v Cregan (No 2) [2011] NSWCA 332

Aysun Pty Ltd v Cregan (No 2) [2011] NSWCA 332

The 29 May 2009 letter was not a Rules offer because it did not comply with Pt 20 r 20.26(3)(a), and although it could be considered outside the Rules, the Court was not persuaded that it was unreasonable for the plaintiff to continue the action in the face of the offer. There was a basis to think the contractual provision had been breached and that the plaintiff had suffered damages, although the appeal turned on causation. Accordingly, the application for a special indemnity costs order was refused.

Jurisdiction
Australia
Judgment Date
31 October 2011
Procedural Posture
Costs; Consequential Orders / Notice of Motion on the Papers Seeking Variation of Costs Orders Made on Appeal
Outcome
Notice of motion dated and filed 8 August 2011 dismissed with costs.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'special Costs Order' 'variation of Orders' 'court of Appeal Constituted After Retirement of a Judge']
['costs' 'civil Procedure' 'appellate Procedure'] ['indemnity Costs' 'offer of Compromise' 'special Costs Order' 'variation of Orders' 'court of Appeal Constituted After Retirement of a Judge']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs; Consequential Orders / Notice of Motion on the Papers Seeking Variation of Costs Orders Made on Appeal

Legal Issues

  1. 1 ["Whether the costs orders made on 29 July 2011 should be varied so that the appellant pay the respondents' costs at first instance and on appeal from 29 May 2009 on an indemnity basis." "Whether the respondents' letter dated 29 May 2009 was an offer under Pt 20 r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW), or otherwise an offer it was unreasonable to reject." "Whether the remaining judges could deal with the motion after Hodgson JA's retirement."]

Ratio Decidendi

The 29 May 2009 letter was not a Rules offer because it did not comply with Pt 20 r 20.26(3)(a), and although it could be considered outside the Rules, the Court was not persuaded that it was unreasonable for the plaintiff to continue the action in the face of the offer. There was a basis to think the contractual provision had been breached and that the plaintiff had suffered damages, although the appeal turned on causation. Accordingly, the application for a special indemnity costs order was refused.

Court Disposition

Notice of motion dated and filed 8 August 2011 dismissed with costs.

Orders

  • ['The notice of motion dated and filed 8 August 2011 be dismissed with costs.']