AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited (No 2)

[2014] NSWCA 238

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 complied with UCPR r 20.26
6. › Whether offer requiring discontinuance was exclusive of costs
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.15A
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Application to appellate court for indemnity costs of trial
5. › Whether application may be made to appellate court where not raised before trial judge and not subject of cross-appeal
1. Practice and Procedure
2. › Costs
3. › Indemnity costs of appeal
4. › Reliance on Offer of Compromise made before trial
5. › Whether party must give notice of intention to rely on pre-trial offer in appeal
6. › Whether separate offer required for appeal proceedings
7. › Uniform Civil Procedure Rules 2005 (NSW), r 51.49
1. Practice and Procedure
2. › Costs
3. › Interest on costs
4. › Whether Court of Appeal may order interest on costs not sought at trial or on appeal
5. › Civil Procedure Act 2005 (NSW), s 101(4), (5)

Quick Take

A party wishing to rely on a pre-trial Offer of Compromise or Calderbank offer to obtain indemnity costs of an appeal must at the very least provide clear notice to the other party of that intention; subtle or ambiguous references in correspondence are insufficient. Applications for indemnity costs should be made to the trial judge before proceeding on appeal, and interest on costs under s 101(4) CPA must be sought at first instance.