"N" v "A" [2012] NSWCA 318

"N" v "A" [2012] NSWCA 318

Leave to appeal was warranted for orders (1)(iii) and (1)(iv) because the applicant raised questions of general importance and a serious question whether the costs discretion miscarried so as to produce a result that was plainly unreasonable or unjust, particularly where the relevant 1 May 2009 communication was not an offer or was not expressed in terms showing intended costs consequences and substantial costs sums were at stake. Leave was not warranted for orders (2)(i) and (2)(ii) because the asserted error about "E"'s costs went to weight rather than principle, and the prospects of successfully challenging the primary judge's discretion were insufficient.

Jurisdiction
Australia
Judgment Date
28 September 2012
Procedural Posture
Application for Leave to Appeal Against Costs Orders / Summons Seeking Leave to Appeal
Outcome
Leave to appeal granted only against orders (1)(iii) and (1)(iv); otherwise the summons seeking leave to appeal was dismissed.
Legal Topics
['leave to Appeal Against Costs Orders' 'discretionary Costs Orders' 'calderbank Offers' 'indemnity Costs' 'necessary Parties']
['civil Procedure' 'costs' 'appeals'] ['leave to Appeal Against Costs Orders' 'discretionary Costs Orders' 'calderbank Offers' 'indemnity Costs' 'necessary Parties']

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Procedural Posture

Application for Leave to Appeal Against Costs Orders / Summons Seeking Leave to Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to appeal against orders (1)(iii) and (1)(iv) made by Ward J on 22 May 2012.' "Whether the primary judge's costs discretion may have miscarried by cutting short an indemnity costs order after a communication that was not an offer capable of simple acceptance or rejection." "Whether leave should be granted to appeal against orders (2)(i) and (2)(ii) concerning the second respondent's costs."]

Ratio Decidendi

Leave to appeal was warranted for orders (1)(iii) and (1)(iv) because the applicant raised questions of general importance and a serious question whether the costs discretion miscarried so as to produce a result that was plainly unreasonable or unjust, particularly where the relevant 1 May 2009 communication was not an offer or was not expressed in terms showing intended costs consequences and substantial costs sums were at stake. Leave was not warranted for orders (2)(i) and (2)(ii) because the asserted error about "E"'s costs went to weight rather than principle, and the prospects of successfully challenging the primary judge's discretion were insufficient.

Court Disposition

Leave to appeal granted only against orders (1)(iii) and (1)(iv); otherwise the summons seeking leave to appeal was dismissed.

Orders

  • ['Grant leave to appeal against orders (1)(iii) and (1)(iv) made by Ward J on 22 May 2012.' 'Otherwise dismiss the summons seeking leave to appeal.' 'Order that the costs of the summons for leave to appeal be costs in the appeal.']