Salmon v Osmond (No 2) [2015] NSWCA 131

Salmon v Osmond (No 2) [2015] NSWCA 131

Order 5 contained a slip because the Court had intended to award the appellants, not the respondents, indemnity costs based on the offer of compromise made to Donna Maree Peters on 8 January 2013. The Court also intended that, because Donna was unsuccessful below and the substantive findings relating to her were not challenged on appeal, she pay the appellants' first instance costs on the ordinary basis up to and including 8 January 2013 and on an indemnity basis from 9 January 2013. The variations were available under UCPR r 36.16(3A) or r 36.17, and the respondents should pay the motion costs because they unsuccessfully raised a substantive dispute about the pre-offer costs.

Jurisdiction
Australia
Judgment Date
18 May 2015
Procedural Posture
Notice of Motion to Vary Costs Orders Under the Uniform Civil Procedure Rules 2005 (nsw) / Court of Appeal, on the Papers
Outcome
Notice of motion granted; costs orders varied; first and second respondents ordered to pay the appellants' costs of the notice of motion.
Legal Topics
['slip Rule' 'variation of Orders' 'offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'ordinary Costs']
['practice and Procedure' 'costs'] ['slip Rule' 'variation of Orders' 'offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'ordinary Costs']

Case Brief

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Procedural Posture

Notice of Motion to Vary Costs Orders Under the Uniform Civil Procedure Rules 2005 (nsw) / Court of Appeal, on the Papers

Legal Issues

  1. 1 ["Whether order 5 of the Court's judgment of 10 March 2015 contained a clerical mistake or accidental slip by referring to the respondents' costs rather than the appellants' costs." "Whether the costs order should be clarified so that Donna Maree Peters pay the appellants' costs of the first instance proceedings on the ordinary basis up to and including 8 January 2013 and on an indemnity basis from 9 January 2013." 'Whether order 6 of the costs judgment below should be varied to accommodate the indemnity costs aspect of the appeal costs order.' "Whether the respondents should pay the appellants' costs of the notice of motion filed 23 March 2015."]

Ratio Decidendi

Order 5 contained a slip because the Court had intended to award the appellants, not the respondents, indemnity costs based on the offer of compromise made to Donna Maree Peters on 8 January 2013. The Court also intended that, because Donna was unsuccessful below and the substantive findings relating to her were not challenged on appeal, she pay the appellants' first instance costs on the ordinary basis up to and including 8 January 2013 and on an indemnity basis from 9 January 2013. The variations were available under UCPR r 36.16(3A) or r 36.17, and the respondents should pay the motion costs because they unsuccessfully raised a substantive dispute about the pre-offer costs.

Court Disposition

Notice of motion granted; costs orders varied; first and second respondents ordered to pay the appellants' costs of the notice of motion.

Orders

  • ['Vary order 5 of the judgment of this Court of 10 March 2015 as follows: "5. In lieu of order 5 in the judgment of the court below of 17 September 2013, order that the second respondent, Donna Maree Peters, pay the appellants\' costs of proceedings in the court below, on the ordinary basis up to and including 8...