Council of The City of Botany Bay v Michos

[2013] NSWCA 244

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Application for leave to appeal
3. › Costs order
4. › Amount below statutory threshold
5. › Whether decision arguably supportable on alternative basis
6. › Whether clear injustice demonstrated
7. › Supreme Court Act 1970 (NSW), s 101(2)(c), s 101(2)(r)
1. Appeal
2. › Application for leave to appeal
3. › Proportionality of costs to amount in dispute
4. › Whether additional costs of appeal warranted
5. › Civil Procedure Act 2005 (NSW), s 60
1. Appeal
2. › Application for leave to cross-appeal
3. › New evidence on appeal
4. › Whether further evidence should be admitted
5. › General public interest in finality of litigation
1. Costs
2. › Indemnity costs
3. › Offer of compromise
4. › Rule 20.26 UCPR
5. › Whether offer including 'plus costs as agreed or assessed' complied with rules
6. › Whether decision supportable under general discretion
7. › Civil Procedure Act 2005 (NSW), s 98(1)(c)

Quick Take

Where a costs order below contains incorrect reasoning but is arguably supportable on an alternative discretionary basis under s 98(1)(c) Civil Procedure Act 2005, leave to appeal will not be granted on the ground of clear injustice. The proportionality of the costs of an appeal to the amount in issue remains a significant factor weighing against leave where the amount is below the statutory threshold. Refusal of a Calderbank offer to walk away from appeal proceedings will not attract indemnity costs where the legal question raised by the appeal was still live at the time of the offer.