Dungowan Manly Pty Ltd v McLaughlin (No 2) [2012] NSWCA 258

Dungowan Manly Pty Ltd v McLaughlin (No 2) [2012] NSWCA 258

The respondents' application for indemnity costs was rejected because, when the settlement offer was made, it sought $250,000, significantly more than the $214,769.97 awarded at first instance, and the respondents had not yet filed a cross-appeal or shown that the grounds for seeking increased damages had been communicated; it was therefore not unreasonable for the Company to reject the offer. The Court otherwise made the agreed consequential orders correcting earlier orders and entering judgment for the respondents inclusive of interest.

Jurisdiction
Australia
Judgment Date
22 August 2012
Procedural Posture
Appeal Consequential Orders / On the Papers After Appeal Judgment of 19 June 2012
Outcome
Indemnity costs application refused; costs order of 19 June 2012 not varied; agreed consequential orders made correcting earlier orders and entering judgment for the respondents.
Legal Topics
['consequential Orders' 'correction of Orders' 'indemnity Costs' 'offer of Settlement' 'interest']
['civil Procedure' 'appeals' 'costs'] ['consequential Orders' 'correction of Orders' 'indemnity Costs' 'offer of Settlement' 'interest']

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Procedural Posture

Appeal Consequential Orders / On the Papers After Appeal Judgment of 19 June 2012

Legal Issues

  1. 1 ["Whether the Court should vary the costs order made on 19 June 2012 by ordering the appellant to pay the respondents' appeal costs from 25 May 2010 on an indemnity basis." 'Whether the Court should make agreed consequential orders correcting dates in earlier orders and entering judgment for the respondents inclusive of interest.']

Ratio Decidendi

The respondents' application for indemnity costs was rejected because, when the settlement offer was made, it sought $250,000, significantly more than the $214,769.97 awarded at first instance, and the respondents had not yet filed a cross-appeal or shown that the grounds for seeking increased damages had been communicated; it was therefore not unreasonable for the Company to reject the offer. The Court otherwise made the agreed consequential orders correcting earlier orders and entering judgment for the respondents inclusive of interest.

Court Disposition

Indemnity costs application refused; costs order of 19 June 2012 not varied; agreed consequential orders made correcting earlier orders and entering judgment for the respondents.

Orders

  • ['The orders of this Court of 19 June 2012 are corrected, pursuant to UCPR 36.17, so that the date of 26 February 2010 is substituted for the date of 16 March 2010 wherever appearing in orders 3, 4 and 7.' 'Judgment for the respondents against the appellant for $632,038.95 (inclusive of interest of $118,909.50).'...