Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 3) [2014] NSWCA 130

Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 3) [2014] NSWCA 130

Although the Court had misapprehended the extent of amendments to the cross-summons between December 2008 and June 2010, the matters identified by Walton showed that Illawarra's pleading and relevant issues were still in a state of flux when the December 2008 settlement offers were made. The misapprehension therefore was not a substantive misapprehension affecting the discretion as to indemnity costs, and no re-opening was warranted.

Jurisdiction
Australia
Judgment Date
17 April 2014
Procedural Posture
Notice of Motion Seeking Leave to Make Submissions in Support of Re Opening Part of a Decision on Costs / Court of Appeal After Judgment; Consequential Orders
Outcome
Notice of motion filed by Illawarra Hotel Company Pty Ltd on 25 July 2013 dismissed with costs.
Legal Topics
['application for Leave to Re Open After Judgment' 'substantive or Material Misapprehension' 'indemnity Costs' 'settlement Offers' 'pleadings in a State of Flux']
['procedure' 'costs'] ['application for Leave to Re Open After Judgment' 'substantive or Material Misapprehension' 'indemnity Costs' 'settlement Offers' 'pleadings in a State of Flux']

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Procedural Posture

Notice of Motion Seeking Leave to Make Submissions in Support of Re Opening Part of a Decision on Costs / Court of Appeal After Judgment; Consequential Orders

Legal Issues

  1. 1 ["Whether Illawarra should be granted leave to make submissions in support of re-opening part of the Court's decision on the basis of a material misapprehension." "Whether the Court's misapprehension about the extent of amendments to Illawarra's cross-summons affected the exercise of discretion concerning assessment of costs on an indemnity basis."]

Ratio Decidendi

Although the Court had misapprehended the extent of amendments to the cross-summons between December 2008 and June 2010, the matters identified by Walton showed that Illawarra's pleading and relevant issues were still in a state of flux when the December 2008 settlement offers were made. The misapprehension therefore was not a substantive misapprehension affecting the discretion as to indemnity costs, and no re-opening was warranted.

Court Disposition

Notice of motion filed by Illawarra Hotel Company Pty Ltd on 25 July 2013 dismissed with costs.

Orders

  • ['The notice of motion filed by Illawarra Hotel Company Pty Ltd on 25 July 2013 is dismissed with costs.']