Hutley v Cosco (No 2) [2021] NSWCA 335

Hutley v Cosco (No 2) [2021] NSWCA 335

Applications for indemnity costs based on offers of compromise and s 40(2)(b) Defamation Act 2005 (NSW) were rejected because the offers were either not genuine compromises or not unreasonably refused; further, an application to vary the costs order to provide for indemnity costs or backdated interest was filed out of time or not supported by sufficient evidence, warranting refusal of the application.

Parties
Appellant: Vanessa Hutley; Respondent: Anthony Cosco
Jurisdiction
Australia
Judgment Date
21 December 2021
Procedural Posture
Appeal / Costs Determination Following Appellate Decision
Outcome
Application refused and amended notice of motion dismissed
Legal Topics
Costs, Indemnity Costs, Offers of Compromise, Interest on Costs, Defamation Proceedings
Civil Procedure Defamation Costs Indemnity Costs Offers of Compromise Interest on Costs Defamation Proceedings

Case Brief

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Parties

Vanessa Hutley

Appellant

Anthony Cosco

Respondent

Procedural Posture

Appeal / Costs Determination Following Appellate Decision

Legal Issues

  1. 1 Whether the costs of the trial should be assessed on an indemnity basis from certain dates or entirely
  2. 2 Whether interest on costs should be ordered from a date earlier than judgment under s 101(5) Civil Procedure Act 2005 (NSW)
  3. 3 Whether the application to vary the prior order was out of time under UCPR r 36.16

Ratio Decidendi

Applications for indemnity costs based on offers of compromise and s 40(2)(b) Defamation Act 2005 (NSW) were rejected because the offers were either not genuine compromises or not unreasonably refused; further, an application to vary the costs order to provide for indemnity costs or backdated interest was filed out of time or not supported by sufficient evidence, warranting refusal of the application.

Court Disposition

Application refused and amended notice of motion dismissed

Orders

  • Refuse the application to vary order 2(b) made and entered on 23 February 2021.
  • Dismiss the amended notice of motion dated 6 September 2021, with no order as to costs.