Coogee Bay Village v Profilio (RLD) [2011] NSWADTAP 67

Coogee Bay Village v Profilio (RLD) [2011] NSWADTAP 67

The damages and costs orders made below necessarily fell because the Appeal Panel had upheld the appeal and dismissed the application. It was fair to order the Respondents to pay the Appellant's costs of the appeal and one third of the costs below because the Respondents had succeeded at first instance on only one of six grounds, the appeal succeeded on that only successful ground, the litigation was hazardous, and the Respondents rejected a $150,000 inclusive-of-costs offer and ultimately did far worse. There was no evidence justifying interest on costs and indemnity costs were not appropriate.

Jurisdiction
Australia
Judgment Date
30 December 2011
Procedural Posture
Internal Appeal Concerning Costs / Costs Determination on the Papers After Appeal Upheld and Application Dismissed
Outcome
Appeal costs orders made; previous orders set aside and substituted costs orders entered for the Appellant.
Legal Topics
['costs of Appeal' 'costs at First Instance' 'offer of Compromise' 'party and Party Costs' 'suitors Fund Certificate' 'tribunal Costs Jurisdiction']
['costs' 'administrative Law'] ['costs of Appeal' 'costs at First Instance' 'offer of Compromise' 'party and Party Costs' 'suitors Fund Certificate' 'tribunal Costs Jurisdiction']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Internal Appeal Concerning Costs / Costs Determination on the Papers After Appeal Upheld and Application Dismissed

Legal Issues

  1. 1 ["Whether the Appellant's costs submissions were validly made within time when signed by Mr Christopher Alexandrou as agent for the Appellant." "Whether the Respondents should pay the Appellant's costs of the appeal." 'Whether the Tribunal should substitute a costs order for the orders made at first instance.' 'Whether interest on costs or indemnity costs should be ordered.' 'Whether the Respondents should have a certificate under the Suitors Fund Act.']

Ratio Decidendi

The damages and costs orders made below necessarily fell because the Appeal Panel had upheld the appeal and dismissed the application. It was fair to order the Respondents to pay the Appellant's costs of the appeal and one third of the costs below because the Respondents had succeeded at first instance on only one of six grounds, the appeal succeeded on that only successful ground, the litigation was hazardous, and the Respondents rejected a $150,000 inclusive-of-costs offer and ultimately did far worse. There was no evidence justifying interest on costs and indemnity costs were not appropriate.

Court Disposition

Appeal costs orders made; previous orders set aside and substituted costs orders entered for the Appellant.

Orders

  • ['Set aside orders made by the Tribunal on 14 January 2011 and 31 March 2011.' "In lieu thereof, order that the Respondents pay one third of the Appellant's costs at first instance." "Order that the Respondents pay the Appellant's costs of the appeal." 'All costs to be on a party and party basis as agreed or in...