Hancock v Arnold; Dodd v Arnold (No. 2)

[2009] NSWCA 19

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Calderbank offers
5. › Whether letters contained offers of compromise
6. › Whether element of compromise
7. › Whether unreasonable not to accept
8. › Invitation to abandon cross-claim
9. › Offer to accept judgment without costs order
10. › Invitation to enter into release and indemnity
11. › Time allowed for acceptance
1. Practice and Procedure
2. › Entry of judgment
3. › Variation of orders after entry
4. › Power of Court to vary costs orders
5. › Whether costs order is ancillary or consequential relief
6. › Oral application for variation
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 36.16
8. › Civil Procedure Act 2005 (NSW), s 14
1. Practice and Procedure
2. › Costs
3. › Scope of leave to challenge costs orders
4. › Whether leave to make submissions on special costs order extends to seeking costs orders not originally made

Quick Take

Costs orders are ancillary or consequential relief within UCPR r 36.16(3) and may be varied after entry of judgment without the need for a notice of motion under r 36.16(3A). Calderbank offers between parties with common interests (such as defendant and cross-defendant) may need to be assessed differently from offers between opposing parties. An offer inviting unconditional abandonment of a cross-claim without any acceptance of proportionate liability may lack a real element of compromise. The automatic entry of judgments under the computerised system means practitioners must be alert to the need for timely applications to vary orders.