C & E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd (No 2) [2021] NSWCA 60

C & E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd (No 2) [2021] NSWCA 60

The respondent's motion was dismissed because r 36.16(2)(b) was not enlivened: the relevant absence is absence from the hearing leading to the orders, and the respondent had participated in that hearing; publication of orders in chambers under COVID-19 arrangements did not make the order one made in the absence of a party. In any event, the offer relied on by the respondent required dismissal of the Notice of Appeal without any compromise as to costs or otherwise, so it did not justify indemnity costs.

Jurisdiction
Australia
Judgment Date
30 April 2021
Procedural Posture
Notice of Motion to Vary a Costs Order After Dismissal of a Notice of Appeal and Application for Leave to Appeal / Court of Appeal, on the Papers
Outcome
Respondent's notice of motion dismissed with costs.
Legal Topics
['variation of Entered Orders' 'orders Made in the Absence of a Party' 'offers of Compromise' 'indemnity Costs' 'covid 19 Chambers Arrangements']
['civil Procedure' 'costs'] ['variation of Entered Orders' 'orders Made in the Absence of a Party' 'offers of Compromise' 'indemnity Costs' 'covid 19 Chambers Arrangements']

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Procedural Posture

Notice of Motion to Vary a Costs Order After Dismissal of a Notice of Appeal and Application for Leave to Appeal / Court of Appeal, on the Papers

Legal Issues

  1. 1 ['Whether the costs order made in chambers and published on JusticeLink was made "in the absence of a party" for the purposes of r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW).' "Whether the respondent was entitled to variation of the costs order to obtain indemnity costs because the applicant did not accept the respondent's offer of compromise dated 4 August 2020." "Whether the respondent's notice of motion was filed within the 14-day period under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW)."]

Ratio Decidendi

The respondent's motion was dismissed because r 36.16(2)(b) was not enlivened: the relevant absence is absence from the hearing leading to the orders, and the respondent had participated in that hearing; publication of orders in chambers under COVID-19 arrangements did not make the order one made in the absence of a party. In any event, the offer relied on by the respondent required dismissal of the Notice of Appeal without any compromise as to costs or otherwise, so it did not justify indemnity costs.

Court Disposition

Respondent's notice of motion dismissed with costs.

Orders

  • ["The respondent's notice of motion filed 22 January 2021 is dismissed with costs."]