Dalma Formwork (Australia) Pty Ltd & Anor v Maricic (No 3) [2008] NSWCA 29

Dalma Formwork (Australia) Pty Ltd & Anor v Maricic (No 3) [2008] NSWCA 29

The trial judge erred in exercising the discretion to 'otherwise order' as to costs flowing from an unaccepted offer of compromise, by taking account of the potential that costs would substantially diminish the damages awarded and the 'unfairness' of the trial’s course—considerations not relevant under the costs rules. The proper approach was to order costs as if under the former District Court Rule, given the transitional nature of the case and the fact that the offer was made when the old rule was in force.

Jurisdiction
Australia
Judgment Date
12 March 2008
Procedural Posture
Appeal / Application for Leave to Appeal and Substantive Appeal on Costs Order
Outcome
Appeal allowed
Legal Topics
['costs' 'offers of Compromise' 'transitional Provisions' 'appeal Procedure']
['civil Procedure'] ['costs' 'offers of Compromise' 'transitional Provisions' 'appeal Procedure']

Case Brief

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Procedural Posture

Appeal / Application for Leave to Appeal and Substantive Appeal on Costs Order

Legal Issues

  1. 1 ['Whether the trial judge erred in departing from the statutory costs consequences attached to an offer of compromise after transitional changes to procedural rules' 'Whether the financial impact of costs consuming damages is a relevant consideration for departing from prescribed costs rules' "Whether discretion to 'otherwise order' as to costs miscarried in this case"]

Ratio Decidendi

The trial judge erred in exercising the discretion to 'otherwise order' as to costs flowing from an unaccepted offer of compromise, by taking account of the potential that costs would substantially diminish the damages awarded and the 'unfairness' of the trial’s course—considerations not relevant under the costs rules. The proper approach was to order costs as if under the former District Court Rule, given the transitional nature of the case and the fact that the offer was made when the old rule was in force.

Court Disposition

Appeal allowed

Orders

  • ['Grant leave to appeal and direct that the notice of appeal be filed within seven days.' 'Appeal allowed.' 'Set aside the substantive order made on 23 March 2007.' "Order that the second and third defendants pay the plaintiff's costs up to 28 August 2004." "Order that the plaintiff pay the second and third...