Motorcycling Events Group Australia Pty Ltd v Kelly (No 2) [2013] NSWCA 399

Motorcycling Events Group Australia Pty Ltd v Kelly (No 2) [2013] NSWCA 399

The respondent's October 2012 offer was a valid offer of compromise under the rules then in force, because it offered to accept a judgment for $340,000 despite the respondent having a trial judgment for $368,445. The appellant did not accept it and the appeal was dismissed, leaving the respondent with the full trial judgment. The appellant's objections to the form of the offer and to indemnity costs were not made out, so the respondent was entitled to indemnity costs from the date after the offer.

Jurisdiction
Australia
Judgment Date
29 November 2013
Procedural Posture
Procedure Costs / Notice of Motion to Vary Costs Order After Dismissal of Appeal; Determined on the Papers
Outcome
Costs order varied; respondent awarded ordinary costs up to 17 October 2012 and indemnity costs thereafter.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'variation of Costs Order' 'uniform Civil Procedure Rules 2005 (nsw)']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'variation of Costs Order' 'uniform Civil Procedure Rules 2005 (nsw)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Procedure Costs / Notice of Motion to Vary Costs Order After Dismissal of Appeal; Determined on the Papers

Legal Issues

  1. 1 ["Whether the respondent's written offer of compromise entitled him to indemnity costs after the appellant's appeal was dismissed." 'Whether the offer failed to comply with the applicable offer of compromise rules because it did not make provision for disposal of the appeal.' "Whether the Court should order otherwise because the appeal was allegedly decided on a substantially different basis from the respondent's submissions." 'Whether the written notice of motion to vary the costs order was too late under r 36.16(3C) of the Uniform Civil Procedure Rules 2005 (NSW).']

Ratio Decidendi

The respondent's October 2012 offer was a valid offer of compromise under the rules then in force, because it offered to accept a judgment for $340,000 despite the respondent having a trial judgment for $368,445. The appellant did not accept it and the appeal was dismissed, leaving the respondent with the full trial judgment. The appellant's objections to the form of the offer and to indemnity costs were not made out, so the respondent was entitled to indemnity costs from the date after the offer.

Court Disposition

Costs order varied; respondent awarded ordinary costs up to 17 October 2012 and indemnity costs thereafter.

Orders

  • ["Substitute for order (2) made on 29 October 2013 the following order: The appellant to pay the respondent's costs of the proceedings in this Court (including the motion to vary order (2)) to be assessed on the ordinary basis up to 17 October 2012 and thereafter on the indemnity basis."]