Riechelmann v McCabe (No 2) [2024] NSWCA 62

Riechelmann v McCabe (No 2) [2024] NSWCA 62

Although the appellant's cross-claim was substantially amended late and the hearing was lengthened, the respondent would probably have resisted the cross-claim just as vigorously if the amended version had been pleaded from the outset, and the issues were not clearly separable. A fair allowance was therefore to require the respondent to pay 75% of the appellant's costs of the District Court cross-claim, without altering the appeal costs order. The purported offers of compromise were unclear and ambiguous, and the Calderbank letters did not justify indemnity costs, so the appellant's indemnity costs application was dismissed.

Jurisdiction
Australia
Judgment Date
20 March 2024
Procedural Posture
Costs / Court of Appeal Applications on the Papers to Vary Costs Orders Made After Appeal Judgment
Outcome
District Court costs order varied to require the cross-defendant to pay 75% of the cross-claimant's costs of the cross-claim; appellant's indemnity costs application dismissed; no variation to appeal costs; papers to be referred to the Office of the Legal Services Commissioner.
Legal Topics
['late Amendment to Cross Claim' 'costs Following the Event' 'separable Issues' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'referral to Office of the Legal Services Commissioner']
['costs' 'civil Procedure'] ['late Amendment to Cross Claim' 'costs Following the Event' 'separable Issues' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'referral to Office of the Legal Services Commissioner']

Case Brief

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Procedural Posture

Costs / Court of Appeal Applications on the Papers to Vary Costs Orders Made After Appeal Judgment

Legal Issues

  1. 1 ['Whether the costs order for the District Court cross-claim should be varied because the appellant made a late substantial amendment to the cross-claim.' 'Whether any allowance should be made because the late amendment lengthened the District Court hearing.' "Whether the respondent should pay the appellant's District Court costs on an indemnity basis from 17 July 2019 by reason of purported offers of compromise or Calderbank offers." 'Whether the costs order for the appeal should be varied.' 'Whether the papers should be referred to the Office of the Legal Services Commissioner.']

Ratio Decidendi

Although the appellant's cross-claim was substantially amended late and the hearing was lengthened, the respondent would probably have resisted the cross-claim just as vigorously if the amended version had been pleaded from the outset, and the issues were not clearly separable. A fair allowance was therefore to require the respondent to pay 75% of the appellant's costs of the District Court cross-claim, without altering the appeal costs order. The purported offers of compromise were unclear and ambiguous, and the Calderbank letters did not justify indemnity costs, so the appellant's indemnity costs application was dismissed.

Court Disposition

District Court costs order varied to require the cross-defendant to pay 75% of the cross-claimant's costs of the cross-claim; appellant's indemnity costs application dismissed; no variation to appeal costs; papers to be referred to the Office of the Legal Services Commissioner.

Orders

  • ['The Registrar of this Court is directed to refer the papers in this proceeding to the Office of the Legal Services Commissioner.' 'Order 4 made by this Court on 23 February 2024 is varied so that it reads as follows: "As regards costs of the proceedings in the District Court, orders 2 and 3 made by that Court on...