McKeith v Royal Bank of Scotland Group PLC;; Royal Bank of Scotland Group PLC v James (No 2)

[2016] NSWCA 260

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Pre-judgment interest
3. › Civil Procedure Act 2005 (NSW), s 100
4. › Whether proceedings were 'for damages'
5. › Whether 'appropriate settlement sum' offered
6. › Whether 'special circumstances' demonstrated
7. › Civil Procedure Act 2005 (NSW), s 100(1), (4), (5)
1. Costs
2. › Appeal costs
3. › Indemnity costs
4. › Offers of compromise made prior to trial
5. › Whether offers at first instance may be relied on for special costs order on appeal
6. › Relevance of failure to renew offers before or during appeal
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 51.47, 51.49
8. › Civil Procedure Act 2005 (NSW), s 98
1. Costs
2. › Interest on costs
3. › Civil Procedure Act 2005 (NSW), s 101(4)
4. › Whether interest on costs should be awarded where no application made at first instance
5. › Partial success by all parties
6. › Countervailing discretionary factors
1. Appeal
2. › Restitution following reversal of judgment
3. › Interest on restitutionary sum
4. › Appropriate rate of interest
5. › Whether interest to be calculated at rate other than legislatively prescribed rate
6. › Burden on party seeking departure from general rule
7. › Supreme Court Act 1970 (NSW), s 75A(10)

Quick Take

A pre-trial offer of compromise that has lapsed and is not renewed for the purposes of an appeal will not, as a general rule, support a special costs order on appeal, and a party wishing to rely on such an offer should at the very least give clear notice of that intention. Proceedings comprising both debt and damages claims are 'for damages' within s 100(4) CPA where the proceedings as a whole are for damages. Interest on a restitutionary sum following reversal on appeal is payable at the legislatively prescribed rate unless the party seeking departure discharges both the persuasive and evidentiary burden of justifying a different rate.