Sydney Equine Coaches Pty Ltd v Gorst [2017] FCAFC 34

Sydney Equine Coaches Pty Ltd v Gorst [2017] FCAFC 34

It was open to the primary Judge to exercise discretion under r 1.35 to make an order inconsistent with r 25.14 due to the fundamental change in the case resulting from the Gillard expert report, which for the first time acknowledged that the vehicle could not lawfully be driven unladen absent modification. This justified not applying the presumptive indemnity costs rule, and no error in principle or manifest injustice was shown.

Parties
First Appellant: Sydney Equine Coaches Pty Ltd; Second Appellant: Dean Anthony Douglas; Respondent: Susan Maree Gorst
Jurisdiction
Australia
Judgment Date
02 March 2017
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed
Legal Topics
Costs, Indemnity Costs, Offer of Compromise, Discretion Under Court Rules
Practice and Procedure Costs Indemnity Costs Offer of Compromise Discretion Under Court Rules

Case Brief

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Parties

Sydney Equine Coaches Pty Ltd

First Appellant

Dean Anthony Douglas

Second Appellant

Susan Maree Gorst

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the primary judge erred by declining to order indemnity costs in favour of the appellant subsequent to an offer of compromise under r 25.14(1)(b) of the Federal Court Rules 2011
  2. 2 Whether an order inconsistent with r 25.14 could be made pursuant to r 1.35 due to circumstances changing during the litigation

Ratio Decidendi

It was open to the primary Judge to exercise discretion under r 1.35 to make an order inconsistent with r 25.14 due to the fundamental change in the case resulting from the Gillard expert report, which for the first time acknowledged that the vehicle could not lawfully be driven unladen absent modification. This justified not applying the presumptive indemnity costs rule, and no error in principle or manifest injustice was shown.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.
  • The Appellants pay the costs of the Respondent.