Dunn & Pilcher Constructions Pty Ltd v Woodos Australia Pty Ltd (No 2) [2022] NSWCATAP 45

Dunn & Pilcher Constructions Pty Ltd v Woodos Australia Pty Ltd (No 2) [2022] NSWCATAP 45

The Appeal Panel ordered ordinary basis costs, not indemnity costs, because the Respondent's last offer of compromise was made during the first instance proceedings about 11 months before the Notice of Appeal, the offers were not renewed for the appeal, no offer was made during the appeal, there was no extant offer open for acceptance during the appeal proceedings, and the first instance costs order was on the ordinary basis; in those circumstances the just resolution of the dispute was facilitated by ordinary basis costs rather than indemnity costs.

Jurisdiction
Australia
Judgment Date
17 February 2022
Procedural Posture
Appeal Costs Decision / On the Papers After Dismissal of the Appeal
Outcome
The Respondent's application for indemnity costs was refused; the Appellant was ordered to pay the Respondent's costs of the appeal on the ordinary basis, and the costs question was determined on the papers.
Legal Topics
['costs of Appeal' 'indemnity Costs' 'ordinary Basis Costs' 'calderbank Offers' 'ncat Rule 38 A' 'determination on the Papers']
['costs' 'civil Procedure'] ['costs of Appeal' 'indemnity Costs' 'ordinary Basis Costs' 'calderbank Offers' 'ncat Rule 38 A' 'determination on the Papers']

Case Brief

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Procedural Posture

Appeal Costs Decision / On the Papers After Dismissal of the Appeal

Legal Issues

  1. 1 ['Whether a hearing on the question of costs of the appeal should be dispensed with.' "Whether the Appellant should pay the Respondent's costs of the appeal on an indemnity basis or on the ordinary basis."]

Ratio Decidendi

The Appeal Panel ordered ordinary basis costs, not indemnity costs, because the Respondent's last offer of compromise was made during the first instance proceedings about 11 months before the Notice of Appeal, the offers were not renewed for the appeal, no offer was made during the appeal, there was no extant offer open for acceptance during the appeal proceedings, and the first instance costs order was on the ordinary basis; in those circumstances the just resolution of the dispute was facilitated by ordinary basis costs rather than indemnity costs.

Court Disposition

The Respondent's application for indemnity costs was refused; the Appellant was ordered to pay the Respondent's costs of the appeal on the ordinary basis, and the costs question was determined on the papers.

Orders

  • ['A hearing on the question of costs of the appeal is dispensed with.' "The Appellant is to pay the Respondent's costs of the appeal on the ordinary basis, as agreed or as assessed."]