Cooper v Kinsella (No 2) [2011] NSWCA 140

Cooper v Kinsella (No 2) [2011] NSWCA 140

Because the facts justifying indemnity costs and the contractual basis (Cl 4 of the Deed) were known to respondents and offers of compromise were made, indemnity costs are justified from the dates of those offers; the notice of motion was sufficiently filed within time despite reference to the wrong rule.

Parties
Appellant: Benjamin Robert COOPER; First Respondent: Ian Anthony KINSELLA; Second Respondent: Simon STONIER; Third Respondent: Scott Benjamin WRIGHT
Jurisdiction
Australia
Judgment Date
03 June 2011
Procedural Posture
Appeal / Costs Determination Following Appeal
Outcome
Notice of motion to vary costs success. Indemnity and ordinary costs ordered as specified.
Legal Topics
Costs, Offers of Compromise, Indemnity Costs, Variation of Costs Orders
Civil Procedure Costs Offers of Compromise Indemnity Costs Variation of Costs Orders

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 4 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Benjamin Robert COOPER

Appellant

Ian Anthony KINSELLA

First Respondent

Simon STONIER

Second Respondent

Scott Benjamin WRIGHT

Third Respondent

Procedural Posture

Appeal / Costs Determination Following Appeal

Legal Issues

  1. 1 Whether application to vary costs order was made within time properly under the rules
  2. 2 Whether contractual right to indemnity costs under Deed of Guarantee should be recognised
  3. 3 Whether offers of compromise justify indemnity costs

Ratio Decidendi

Because the facts justifying indemnity costs and the contractual basis (Cl 4 of the Deed) were known to respondents and offers of compromise were made, indemnity costs are justified from the dates of those offers; the notice of motion was sufficiently filed within time despite reference to the wrong rule.

Court Disposition

Notice of motion to vary costs success. Indemnity and ordinary costs ordered as specified.

Orders

  • Mr Cooper's legal costs of the proceedings below, to be paid by the respondents, assessed on an ordinary basis up to and including 28 September 2009 and on an indemnity basis thereafter.
  • Mr Cooper's costs of the appeal, to be paid by the respondents, assessed on an ordinary basis up to and including 21 January 2011 and on an indemnity basis thereafter.