Black Head Bowling Club Ltd v Harrower (No 2) [2023] NSWCA 317

Black Head Bowling Club Ltd v Harrower (No 2) [2023] NSWCA 317

The motion was dismissed because the principal appeal judgment had addressed all costs issues raised by the Club, including trial costs, and UCPR r 36.16 was not to be used to raise after judgment a point the Club had not advanced in its appeal submissions or relief. There was also no occasion to use the slip rule in UCPR r 36.17. The indemnity costs variation was refused because the Club's offer did not comply with UCPR r 20.26, did not identify the proposed orders to be made upon acceptance, and was insufficiently clear; the Club therefore did not show that Mr Edstein's rejection of it was unreasonable.

Jurisdiction
Australia
Judgment Date
15 December 2023
Procedural Posture
Notice of Motion to Vary Costs Orders After Appeal Judgment / Court of Appeal, on the Papers
Outcome
Notice of motion dismissed.
Legal Topics
['variation of Costs Orders' 'slip Rule' 'indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'costs Following the Event']
['civil Procedure' 'costs' 'judgments and Orders'] ['variation of Costs Orders' 'slip Rule' 'indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'costs Following the Event']

Case Brief

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Procedural Posture

Notice of Motion to Vary Costs Orders After Appeal Judgment / Court of Appeal, on the Papers

Legal Issues

  1. 1 ["Whether the Court should vary order 9 made on 9 November 2023 to make Mr Edstein liable for the plaintiffs' costs at first instance and to include costs in the 50% contribution order." "Whether the Court should vary order 3 made on 9 November 2023 so that Mr Edstein pay the Club's costs of ground 6 of the appeal on an ordinary basis until 12 April 2023 and thereafter on an indemnity basis." 'Whether the Court had jurisdiction under the Uniform Civil Procedure Rules 2005 (NSW) to vary its orders.']

Ratio Decidendi

The motion was dismissed because the principal appeal judgment had addressed all costs issues raised by the Club, including trial costs, and UCPR r 36.16 was not to be used to raise after judgment a point the Club had not advanced in its appeal submissions or relief. There was also no occasion to use the slip rule in UCPR r 36.17. The indemnity costs variation was refused because the Club's offer did not comply with UCPR r 20.26, did not identify the proposed orders to be made upon acceptance, and was insufficiently clear; the Club therefore did not show that Mr Edstein's rejection of it was unreasonable.

Court Disposition

Notice of motion dismissed.

Orders

  • ['The notice of motion filed 23 November 2023 is dismissed.' "Black Head Bowling Club Ltd is to pay Mr Edstein's costs of the notice of motion."]