Nominal Defendant v Genn (No. 2) [2004] NSWCA 335

Nominal Defendant v Genn (No. 2) [2004] NSWCA 335

Although the offer was sufficient to engage the compromise rules and any defect in form was only technical, indemnity costs were not appropriate because the appeal had merit, the judgment below was deficient, the respondent's compromise was very small, and the respondent still required the appellant to pay the appeal costs; ordinary costs should therefore stand.

Jurisdiction
Australia
Judgment Date
21 September 2004
Procedural Posture
Appeal / Judgment on Costs Following Dismissal of Appeal
Outcome
Order as pronounced on 1 September 2004 stands, costs to be assessed on the ordinary basis.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'discretionary Costs Orders']
['costs' 'civil Procedure'] ['offer of Compromise' 'indemnity Costs' 'discretionary Costs Orders']

Case Brief

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Procedural Posture

Appeal / Judgment on Costs Following Dismissal of Appeal

Legal Issues

  1. 1 ["Whether the respondent's Offer of Compromise warranted costs on an indemnity or other special basis after the appeal was dismissed." 'Whether the Offer of Compromise involved a sufficient compromise and was in proper form.' 'Whether discretionary considerations justified refusing a special costs order.']

Ratio Decidendi

Although the offer was sufficient to engage the compromise rules and any defect in form was only technical, indemnity costs were not appropriate because the appeal had merit, the judgment below was deficient, the respondent's compromise was very small, and the respondent still required the appellant to pay the appeal costs; ordinary costs should therefore stand.

Court Disposition

Order as pronounced on 1 September 2004 stands, costs to be assessed on the ordinary basis.

Orders

  • ['The order as pronounced on 1 September 2004 stands.' 'The costs are to be assessed on the ordinary basis.']