Hungry Jack’s Pty Ltd v Fourtounas (No 2) [2021] NSWCA 26

Hungry Jack’s Pty Ltd v Fourtounas (No 2) [2021] NSWCA 26

The respondent's offer to have the summons dismissed with no order as to costs was a permissible compromise, was open for an ample and reasonable period of 14 days in the circumstances of a straightforward application, and yielded a judgment no less favourable than the offer. The applicant did not establish good reason for the Court to make a different order, and there was no injustice in allowing UCPR r 42.15A to operate according to its terms. The earlier costs order was therefore varied to provide for ordinary costs up to and including 15 October 2020 and indemnity costs thereafter, including the costs of the motion.

Jurisdiction
Australia
Judgment Date
05 March 2021
Procedural Posture
Application to Vary Costs Order After Refusal of Leave to Appeal / Court of Appeal, on the Papers
Outcome
Costs order varied in favour of the respondent.
Legal Topics
['indemnity Costs' 'offer of Compromise' 'application for Leave to Appeal' 'variation of Costs Order' 'uniform Civil Procedure Rules 2005 (nsw) Rr 20.26 and 42.15 A']
['civil Procedure' 'costs' 'appeals'] ['indemnity Costs' 'offer of Compromise' 'application for Leave to Appeal' 'variation of Costs Order' 'uniform Civil Procedure Rules 2005 (nsw) Rr 20.26 and 42.15 A']

Case Brief

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Procedural Posture

Application to Vary Costs Order After Refusal of Leave to Appeal / Court of Appeal, on the Papers

Legal Issues

  1. 1 ["Whether the costs order made on 10 December 2020 should be varied to award indemnity costs after the respondent's offer of compromise." "Whether the respondent's offer of compromise was open for a reasonable period." 'Whether the offer involved a compromise.' 'Whether the Court should otherwise order instead of applying the default costs consequences under UCPR r 42.15A.']

Ratio Decidendi

The respondent's offer to have the summons dismissed with no order as to costs was a permissible compromise, was open for an ample and reasonable period of 14 days in the circumstances of a straightforward application, and yielded a judgment no less favourable than the offer. The applicant did not establish good reason for the Court to make a different order, and there was no injustice in allowing UCPR r 42.15A to operate according to its terms. The earlier costs order was therefore varied to provide for ordinary costs up to and including 15 October 2020 and indemnity costs thereafter, including the costs of the motion.

Court Disposition

Costs order varied in favour of the respondent.

Orders

  • ["Vary order (2) made on 10 December 2020 requiring the applicant to pay the respondents costs in this Court, so that it now provides: Order that the applicant pay the respondent's costs assessed on the ordinary basis up to and including 15 October 2020 and thereafter on an indemnity basis, such costs to include the...