Edmonds v Barrington Winstanley Group Pty Ltd (No 2) [2023] NSWCA 197

Edmonds v Barrington Winstanley Group Pty Ltd (No 2) [2023] NSWCA 197

Although the 6 March 2023 Offer was genuine and, viewed only in relation to the appeal, would have produced a better outcome for the appellants than the result they achieved, it was a global offer also resolving related Review Proceedings and Petition Proceedings about which the Court had only limited reliable information and no outcome for comparison. The Court was therefore not satisfied that failure to accept the offer was unreasonable. The appellants' pursuit of unsuccessful appeal grounds and their fresh evidence application did not, separately or cumulatively, amount to unreasonable conduct warranting indemnity costs. Costs were ordered on the ordinary basis.

Jurisdiction
Australia
Judgment Date
22 August 2023
Procedural Posture
Costs Application in an Appeal / On the Papers After the Appeal Was Dismissed
Outcome
Indemnity costs were refused; the appellants were ordered to pay the respondent's costs of the appeal on the ordinary basis if not agreed.
Legal Topics
['party/party Costs' 'indemnity Costs' 'ordinary Basis Costs' 'calderbank Offer' 'offer of Compromise' 'reasonableness of Refusal of Offer' 'related Bankruptcy Proceedings']
['costs' 'civil Procedure'] ['party/party Costs' 'indemnity Costs' 'ordinary Basis Costs' 'calderbank Offer' 'offer of Compromise' 'reasonableness of Refusal of Offer' 'related Bankruptcy Proceedings']

Case Brief

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Procedural Posture

Costs Application in an Appeal / On the Papers After the Appeal Was Dismissed

Legal Issues

  1. 1 ["Whether the appellants should pay the respondent's costs on an indemnity basis from 21 March 2023 because they did not accept the 6 March 2023 Offer." 'Whether the 6 March 2023 Offer was a genuine offer of compromise and whether the appellants acted unreasonably in refusing it.' "Whether the appellants' conduct of the appeal, including abandoned grounds and an unsuccessful fresh evidence application, justified indemnity costs."]

Ratio Decidendi

Although the 6 March 2023 Offer was genuine and, viewed only in relation to the appeal, would have produced a better outcome for the appellants than the result they achieved, it was a global offer also resolving related Review Proceedings and Petition Proceedings about which the Court had only limited reliable information and no outcome for comparison. The Court was therefore not satisfied that failure to accept the offer was unreasonable. The appellants' pursuit of unsuccessful appeal grounds and their fresh evidence application did not, separately or cumulatively, amount to unreasonable conduct warranting indemnity costs. Costs were ordered on the ordinary basis.

Court Disposition

Indemnity costs were refused; the appellants were ordered to pay the respondent's costs of the appeal on the ordinary basis if not agreed.

Orders

  • ["The appellants should pay the respondent's costs of the appeal, including on the issue of costs, to be assessed on the ordinary basis if not agreed."]