Hutley v Cosco (No 2)

[2021] NSWCA 335

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Indemnity costs
3. › Calderbank offers
4. › Whether offers were genuine offers of compromise
5. › Whether non-acceptance unreasonable
6. › Offers making no provision for existing legal costs
1. Costs
2. › Indemnity costs
3. › Defamation proceedings
4. › Scope of Defamation Act 2005 (NSW) s 40(2)(b)
5. › Whether provision requires indemnity costs whenever plaintiff loses
6. › Whether settlement offer was reasonable when made
1. Costs
2. › Interest on costs
3. › Power to backdate interest
4. › Whether application to vary date from which interest runs is a variation of existing costs order
5. › Whether UCPR r 36.16(3A) 14-day time limit applies
6. › Civil Procedure Act 2005 (NSW), s 101(4), (5)
1. Practice and Procedure
2. › Variation of orders
3. › Time limit for variation
4. › UCPR r 36.16(3A)
5. › Whether order for interest on costs from earlier date constitutes variation of costs order
6. › Whether court functus officio

Quick Take

Calderbank offers in defamation proceedings must include provision for existing legal costs and cannot be accompanied by unreasonable conditions such as confidentiality clauses to support indemnity costs claims; applications to backdate interest on costs must be made within 14 days of the costs order to avoid jurisdictional uncertainty.