Encyclopaedia Britannica Australia Ltd v Campbell (No 2) [2009] NSWCA 335

Encyclopaedia Britannica Australia Ltd v Campbell (No 2) [2009] NSWCA 335

The offer of compromise for $40,000 plus costs, even without evidence proving it enlivened UCPR r 42.15A, was a genuine offer substantially more favourable to Mr Campbell than the final outcome and there was no substantial reason why rejecting it should not result in indemnity costs at first instance from 9 November 2007. However, because appeal proceedings are distinct and the offer was not renewed on appeal, and because it was reasonable for Mr Campbell to support the judgment he had obtained at first instance, the appeal costs should follow the event only on a party and party basis.

Jurisdiction
Australia
Judgment Date
28 October 2009
Procedural Posture
Consequential Orders as to Costs / New South Wales Court of Appeal After Appeal Allowed
Outcome
Additional costs and interest orders made in favour of the appellant; indemnity costs awarded only for the first instance proceedings after 9 November 2007, with appeal costs on a party and party basis.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'party and Party Costs' 'appeal Costs' 'interest on Costs' 'suitors Fund Certificate']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'party and Party Costs' 'appeal Costs' 'interest on Costs' 'suitors Fund Certificate']

Case Brief

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Procedural Posture

Consequential Orders as to Costs / New South Wales Court of Appeal After Appeal Allowed

Legal Issues

  1. 1 ['Whether an offer of compromise made at trial and not renewed on appeal should result in indemnity costs for the proceedings at first instance and for the appeal.' 'Whether the appellant should receive interest on costs and disbursements under s 101(4) of the Civil Procedure Act 2005 (NSW).' 'Whether prior costs orders made by the primary Judge should be disturbed.']

Ratio Decidendi

The offer of compromise for $40,000 plus costs, even without evidence proving it enlivened UCPR r 42.15A, was a genuine offer substantially more favourable to Mr Campbell than the final outcome and there was no substantial reason why rejecting it should not result in indemnity costs at first instance from 9 November 2007. However, because appeal proceedings are distinct and the offer was not renewed on appeal, and because it was reasonable for Mr Campbell to support the judgment he had obtained at first instance, the appeal costs should follow the event only on a party and party basis.

Court Disposition

Additional costs and interest orders made in favour of the appellant; indemnity costs awarded only for the first instance proceedings after 9 November 2007, with appeal costs on a party and party basis.

Orders

  • ["Subject to Order 6, the respondent pay the appellant's costs in respect of the proceedings at first instance on a party and party basis up to and including 9 November 2007 and on an indemnity basis thereafter." 'Order 5 is without prejudice to any costs orders made by the primary Judge in the proceedings prior to...