Hendriks v McGeoch (No 2) [2008] NSWCA 103

Hendriks v McGeoch (No 2) [2008] NSWCA 103

The costs order should not be varied because, although the respondent's pre-trial offers were more favourable to the appellants than the judgment ultimately obtained after appeal, the appeal was a new stage of the litigation, no new settlement offer was made after trial, and the respondent's post-trial position was to maintain the full judgment. In the appellate costs discretion the pre-trial offers counted for little and did not justify indemnity costs or any enlargement of the existing costs order.

Jurisdiction
Australia
Judgment Date
23 May 2008
Procedural Posture
Consequential Orders; Costs Application Following Appeal / Court of Appeal Determination on Written Submissions of Respondent's Application to Vary Costs Order Made on 2 April 2008
Outcome
Costs order made on 2 April 2008 not varied; respondent to pay appellants' costs of the application to vary it.
Legal Topics
['pre Trial Offers of Settlement' 'offers of Compromise' 'calderbank Offers' 'indemnity Costs' 'appellate Costs Discretion' 'variation of Costs Order']
['civil Procedure' 'costs' 'appeals'] ['pre Trial Offers of Settlement' 'offers of Compromise' 'calderbank Offers' 'indemnity Costs' 'appellate Costs Discretion' 'variation of Costs Order']

Case Brief

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Procedural Posture

Consequential Orders; Costs Application Following Appeal / Court of Appeal Determination on Written Submissions of Respondent's Application to Vary Costs Order Made on 2 April 2008

Legal Issues

  1. 1 ["Whether the Court's costs order made on 2 April 2008 should be varied because of pre-trial settlement offers." "Whether the respondent's 50 per cent of the costs of the appeal should be assessed on an indemnity basis." 'What weight should be given to pre-trial offers of compromise and settlement letters in exercising the appellate costs discretion.']

Ratio Decidendi

The costs order should not be varied because, although the respondent's pre-trial offers were more favourable to the appellants than the judgment ultimately obtained after appeal, the appeal was a new stage of the litigation, no new settlement offer was made after trial, and the respondent's post-trial position was to maintain the full judgment. In the appellate costs discretion the pre-trial offers counted for little and did not justify indemnity costs or any enlargement of the existing costs order.

Court Disposition

Costs order made on 2 April 2008 not varied; respondent to pay appellants' costs of the application to vary it.

Orders

  • ['The costs order made on 2 April 2008 should not be varied.' "The respondent should pay the appellants' costs of the application to vary it."]