Hagerty v Hills Central Pty Ltd (No 2) [2018] NSWCA 279

Hagerty v Hills Central Pty Ltd (No 2) [2018] NSWCA 279

The costs regarding the respondent's notice of motion filed on 28 June 2018 (and amended 4 July 2018), related to a discrete event which was not challenged on appeal; therefore, a separate costs order was warranted. The appellants’ application for special costs order was filed out of time; the rules do not permit extension of the time limit, and in any event the offers did not represent a genuine compromise of the binary issues in the litigation.

Parties
Appellants: Anthony Gerard Hagerty & Catherine Elizabeth Hagerty as Executors of the Estate of the late Gladys Delores Hagerty; Respondent: Hills Central Pty Ltd
Jurisdiction
Australia
Judgment Date
21 November 2018
Procedural Posture
Appeal / Costs Order Following Appeal Determination
Outcome
Orders varied and costs orders made as sought by respondent, appellants’ costs application dismissed.
Legal Topics
Costs, Variation of Orders, Uniform Civil Procedure Rules
Civil Procedure Costs Variation of Orders Uniform Civil Procedure Rules

Case Brief

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Parties

Anthony Gerard Hagerty & Catherine Elizabeth Hagerty as Executors of the Estate of the late Gladys Delores Hagerty

Appellants

Hills Central Pty Ltd

Respondent

Procedural Posture

Appeal / Costs Order Following Appeal Determination

Legal Issues

  1. 1 Whether costs in respect of separate interlocutory proceedings should be treated as a separate event for costs purposes
  2. 2 Whether the appellants were entitled to a special costs order based on Calderbank offers
  3. 3 Whether the appellants’ notice of motion for indemnity costs was out of time and if the Court had power to extend time

Ratio Decidendi

The costs regarding the respondent's notice of motion filed on 28 June 2018 (and amended 4 July 2018), related to a discrete event which was not challenged on appeal; therefore, a separate costs order was warranted. The appellants’ application for special costs order was filed out of time; the rules do not permit extension of the time limit, and in any event the offers did not represent a genuine compromise of the binary issues in the litigation.

Court Disposition

Orders varied and costs orders made as sought by respondent, appellants’ costs application dismissed.

Orders

  • Order 4 made 11 September 2018 varied: 'The respondent pay the appellants' costs at first instance and in this Court, except the costs at first instance of the respondent's motion filed on 28 June 2018 (and amended on 4 July 2018), which costs are to be paid by the appellants.'
  • The appellants pay the respondent's costs of the notices of motion filed 25 September and 2 October 2018.