Fotheringham v Fotheringham (No. 2)

(1999) 46 NSWLR 194; [1999] NSWCA 21

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Offer of compromise
5. › Offer made before trial
6. › Whether offer operates on appeal
7. › Whether successful appellant liable for indemnity costs where award reduced but not below offer amount
8. › Supreme Court Act 1970 (NSW), s 76
9. › SCR Pt 52A rr 4, 11, 22(4)
1. Practice and Procedure
2. › Costs
3. › Departing from general rule
4. › Costs follow the event
5. › Interaction between general costs discretion and offer of compromise rules
6. › Discretion under Pt 52A r 22(4) to 'otherwise order'
7. › Supreme Court Act 1970 (NSW), s 76
8. › SCR Pt 52A rr 11, 22(4)
1. Appeal
2. › Costs of appeal
3. › Offer of compromise made before trial
4. › Whether pre-trial offer of compromise continues to have costs consequences on appeal
5. › Successful appellant's reasonable expectation of costs order

Quick Take

A pre-trial offer of compromise under Pt 22 remains relevant to costs on appeal, but Pt 52A r 22(4) does not automatically entitle a respondent to indemnity costs of the appeal merely because the appeal outcome remains no less favourable than the offer. Where the appeal is upheld and a significant reduction achieved, the court's discretion under r 22(4) to 'otherwise order' will ordinarily be exercised in favour of the successful appellant receiving costs of the appeal.