Brighten v Traino (No 2) [2019] NSWCA 203

Brighten v Traino (No 2) [2019] NSWCA 203

Order (3) made in the District Court on 30 July 2018 remained on foot and was inconsistent with order (2)(d) made by the Court of Appeal, so order (2)(d) should be revoked. The first and second respondents were not entitled to indemnity costs of the appeal from 17 October 2018 because their offer was an early walk-away offer, there was no evidence or explanation that significant appeal costs had already been incurred, nothing was offered in return, and they did not explain why the appeal was doomed to fail. Those circumstances provided proper reasons to disapply the costs consequence under the rules and decline to vary the appeal costs order.

Jurisdiction
Australia
Judgment Date
16 August 2019
Procedural Posture
Costs / Notice of Motion to Vary Costs Orders After Appeal Judgment
Outcome
Orders varied in part; the applicants' notice of motion otherwise dismissed; first and second respondents ordered to pay the appellant's costs of the motion.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'variation of Orders' 'genuine Compromise' 'appeal Costs']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'variation of Orders' 'genuine Compromise' 'appeal Costs']

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Procedural Posture

Costs / Notice of Motion to Vary Costs Orders After Appeal Judgment

Legal Issues

  1. 1 ["Whether order (2)(d) made by the Court of Appeal on 8 July 2019 should be revoked because it was inconsistent with order (3) made in the District Court on 30 July 2018 concerning the first and second defendants' trial costs." "Whether the first and second respondents' offer of compromise dated 17 October 2018 justified varying the appeal costs order so that the appellant pay their costs on an indemnity basis from that date." 'Who should pay the costs of the motion.']

Ratio Decidendi

Order (3) made in the District Court on 30 July 2018 remained on foot and was inconsistent with order (2)(d) made by the Court of Appeal, so order (2)(d) should be revoked. The first and second respondents were not entitled to indemnity costs of the appeal from 17 October 2018 because their offer was an early walk-away offer, there was no evidence or explanation that significant appeal costs had already been incurred, nothing was offered in return, and they did not explain why the appeal was doomed to fail. Those circumstances provided proper reasons to disapply the costs consequence under the rules and decline to vary the appeal costs order.

Court Disposition

Orders varied in part; the applicants' notice of motion otherwise dismissed; first and second respondents ordered to pay the appellant's costs of the motion.

Orders

  • ['Vary the orders made on 8 July 2019 by revoking order (2)(d), with the intention that order (3) made in the District Court on 30 July 2018 will continue to operate.' "Otherwise dismiss the applicants' notice of motion filed 18 July 2019." "Order that the first and second respondents (the applicants on the motion)...