Drummond and Rosen Pty Limited v Easey & Ors [No 2]

[2009] NSWCA 331

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Calderbank offers
5. › Whether rejection of Calderbank offer unreasonable
6. › Whether offer made on basis different from ground of success
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Calderbank offers at first instance
5. › Relevance to costs of appeal
6. › Whether absence of corresponding offer in appeal precludes indemnity costs order
1. Practice and Procedure
2. › Costs
3. › Sanderson order
4. › Whether unsuccessful defendant should bear costs of successful co-defendant
5. › Whether relevant facts peculiarly within knowledge of party seeking order
1. Practice and Procedure
2. › Costs
3. › Interest on costs
4. › Pre-assessment interest
5. › Whether order under s 101(4) Civil Procedure Act 2005 (NSW) requires evidence of dates and amounts of costs paid
6. › Civil Procedure Act 2005 (NSW), s 101(4), (5)

Quick Take

An order for pre-assessment interest on costs under s 101(4) of the Civil Procedure Act 2005 (NSW) may be made without evidence of the dates and amounts of costs paid (majority view). The power must be exercised by the Court, not by a costs assessor, and must be sought in the substantive judgment or on a motion filed within 14 days thereafter. A Calderbank offer at first instance is capable of being relevant to indemnity costs on appeal, but the absence of a corresponding offer in the appeal tends against such an order.