Loose Fit Pty Limited v Marshbaum & Ors (No 2) [2012] NSWCA 23

Loose Fit Pty Limited v Marshbaum & Ors (No 2) [2012] NSWCA 23

The offer of compromise was a genuine compromise because the plaintiff respondent offered to forego a bona fide claim to appeal costs, and the appellant could have accepted it without prejudicing its separate appeal against the owners because it could rely on issue estoppels to establish its liability for contribution purposes. The occupier's omitted claim for contribution in respect of trial costs was within the slip rule and should be allowed on its merits.

Jurisdiction
Australia
Judgment Date
06 March 2012
Procedural Posture
Costs and Contribution Motions After Appeal / On the Papers After Court of Appeal Judgment of 30 November 2011
Outcome
The plaintiff respondent's motion for indemnity costs was granted, and the occupier's motion to vary the contribution order was granted with no order as to the costs of that motion.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'costs Assessment' 'issue Estoppel' 'cross Claim for Contribution' 'slip Rule']
['civil Procedure' 'costs' 'contribution' 'tort'] ['offer of Compromise' 'indemnity Costs' 'costs Assessment' 'issue Estoppel' 'cross Claim for Contribution' 'slip Rule']

Case Brief

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Procedural Posture

Costs and Contribution Motions After Appeal / On the Papers After Court of Appeal Judgment of 30 November 2011

Legal Issues

  1. 1 ["Whether the plaintiff respondent's offer of compromise of 13 May 2011 justified an order that the appellant pay costs of the appeal on the indemnity basis after that date." 'Whether the appellant was prevented from accepting the offer of compromise because it was pursuing an appeal against the owners.' "Whether the occupier's contribution judgment against the owners should be varied to include 50% of the costs of the trial payable by Loose Fit Pty Ltd to the plaintiff."]

Ratio Decidendi

The offer of compromise was a genuine compromise because the plaintiff respondent offered to forego a bona fide claim to appeal costs, and the appellant could have accepted it without prejudicing its separate appeal against the owners because it could rely on issue estoppels to establish its liability for contribution purposes. The occupier's omitted claim for contribution in respect of trial costs was within the slip rule and should be allowed on its merits.

Court Disposition

The plaintiff respondent's motion for indemnity costs was granted, and the occupier's motion to vary the contribution order was granted with no order as to the costs of that motion.

Orders

  • ['Motion of 6 December 2011: Order that the costs payable by the appellant pursuant to order (1) of 30 November 2011 be paid on the ordinary basis up to and including 13 May 2011, and on the indemnity basis thereafter until 30 November 2011.' 'Motion of 6 December 2011: The appellant to pay the costs of the motion.'...