SMITH v YUSEN DALY SMITH INTERNATIONAL (In Liq) (No. 2) [2001] NSWCA 482

SMITH v YUSEN DALY SMITH INTERNATIONAL (In Liq) (No. 2) [2001] NSWCA 482

The Notice of Motion was dismissed because the proposed indemnity costs order concerned matters known before Hamilton J delivered his costs judgment and could have been raised before him, making it inappropriate for the Court of Appeal to revisit one element of the broad costs discretion. As to appeal and cross-appeal costs, although the earlier settlement offer was reasonable and had been rejected intransigently, no further offer was made during the two years before the appeal was argued, the appeal result was in practical substance a draw, and it was not appropriate to exercise the costs discretion in the Claimants' favour.

Jurisdiction
Australia
Judgment Date
17 December 2001
Procedural Posture
Notice of Motion for Costs Orders / Court of Appeal After Earlier Appeal Judgment
Outcome
Notice of Motion dismissed with costs.
Legal Topics
['costs of Appeal and Cross Appeal' 'indemnity Costs' 'offer of Settlement' 'costs Discretion' 'application Raised After Trial Costs Judgment']
['costs' 'civil Procedure' 'appellate Procedure'] ['costs of Appeal and Cross Appeal' 'indemnity Costs' 'offer of Settlement' 'costs Discretion' 'application Raised After Trial Costs Judgment']

Case Brief

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Procedural Posture

Notice of Motion for Costs Orders / Court of Appeal After Earlier Appeal Judgment

Legal Issues

  1. 1 ["Whether an order should be made that the appellant pay the respondents' costs of the appeal and cross-appeal." "Whether the appellant should pay the respondents' costs of the proceedings below on and from 8 June 1999 on an indemnity basis because of an offer of settlement." 'Whether the Court of Appeal should entertain a specific costs point not raised before the trial judge when the trial judge exercised the costs discretion.']

Ratio Decidendi

The Notice of Motion was dismissed because the proposed indemnity costs order concerned matters known before Hamilton J delivered his costs judgment and could have been raised before him, making it inappropriate for the Court of Appeal to revisit one element of the broad costs discretion. As to appeal and cross-appeal costs, although the earlier settlement offer was reasonable and had been rejected intransigently, no further offer was made during the two years before the appeal was argued, the appeal result was in practical substance a draw, and it was not appropriate to exercise the costs discretion in the Claimants' favour.

Court Disposition

Notice of Motion dismissed with costs.

Orders

  • ['Notice of Motion dismissed with costs.']