Loose Fit Pty Limited v Marshbaum & Ors (No 2)

[2012] NSWCA 23

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Offer of compromise
5. › Whether offer to dismiss appeal with each party bearing own costs constituted genuine compromise
6. › Whether appellant precluded from accepting offer due to related cross-claim appeal
1. Practice and Procedure
2. › Judgments and orders
3. › Slip rule
4. › Variation of orders after judgment
5. › Whether claim for contribution for plaintiff's trial costs overlooked by advisers could be corrected under slip rule
6. › Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c)
1. Tort
2. › Contribution between tortfeasors
3. › Scope of contribution
4. › Whether contribution under s 5(1)(c) extends to costs payable to plaintiff
5. › Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c)

Quick Take

A party is not precluded from accepting an offer of compromise on an appeal merely because it is simultaneously pursuing a related cross-claim appeal against a third party, where issue estoppels from the underlying judgment would support the cross-claim independently. The slip rule may be invoked to vary a contribution order to include the plaintiff's trial costs where that relief was inadvertently omitted from the notice of appeal and not sought at the hearing.