[2012] NSWCA 17

Agricultural and Rural Finance Pty Ltd v Brakatselos

Application for leave to cross appeal, insofar as it relates to the applications for leave to cross appeal against the two costs orders, is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords

COSTS - indemnity costs - where offer of compromise or Calderbank letter - applicants seek leave to cross appeal against costs orders in Court below - where primary judge ordered costs on the usual basis despite Calderbank offer - applicant argued that a correct exercise of the discretion would have resulted in an award for indemnity costs in its favour - consideration of Jones v Bradley (No 2) - insufficient reason to interfere with primary judge's exercise of discretion - leave refused

Cases cited

Jones v Bradley (No 2)[2003] NSWCA 258

Legislation cited

Supreme Court Act 1970

Judgment

[1]
CAMPBELL JA : Agricultural and Rural Finance Pty Limited (" ARF ") succeeded in the Supreme Court in a claim for debt against numerous defendants. Some of those defendants have now appealed or else seek leave to appeal. I will refer to them all as appellants.
[2]
ARF seeks leave to cross appeal in relation to the refusal of the trial judge to grant it indemnity costs. It also originally sought leave to cross appeal against the refusal of the trial judge to make an order for costs in its favour concerning one day's hearing on 7 June 2011. However, on the hearing of the application for leave to appeal Mr Hale of Senior Counsel, who appears for ARF, withdrew the latter application.
[3]
If the appellants and applicants for leave to appeal were to succeed in this Court in any way, that would inevitably open up for reconsideration the appropriate costs order to be made concerning the hearing in the Court below. The challenge that ARF seeks to make to the costs orders of the judge are made on the assumption that it retains its verdict in the Court below. When considered on that basis, the judge's decision is a decision on costs only which are in the discretion of the Court and thus leave to appeal is needed under s 101(2)(c) of the Supreme Court Act 1970 .
[4]
The application for the indemnity costs order has two separate bases. One is the failure of the appellants to accept a Calderbank offer made on 8 July 2009. The offer had been made to a larger group of defendants than the appellants. Some of those defendants accepted it, but the appellants did not. The other basis for the application is said to be unreasonable conduct on the part of the appellants in the overall conduct of the litigation.
[5]
The judge expressly recognised in his judgment the making and terms of the Calderbank offer and the outcome of the litigation. Though the reasoning of the judge on the topic was economical, no novel question of principle is raised in the application for leave to cross-appeal. Rather the application is in substance one for this Court to re-exercise the judge's discretion and reach a different answer.
[6]
There are particular difficulties in succeeding in an application against a trial judge's exercise of discretion where that discretion has been exercised with the judge bearing in mind his or her understanding of the complexities of the proceedings that have unfolded before him or her over a lengthy period of time. This is such a case, as whether it is unreasonable to accept a Calderbank offer depends upon all the circumstances of the case, as this Court has held in Jones v Bradley (No 2) [2003] NSWCA 258 at [13]. It must be borne in mind that having prospects of success on an appeal concerning costs is not a sufficient reason for granting leave to appeal concerning it.
[7]
ARF submits that a large amount of money, several hundreds of thousands of dollars, hinges on the difference between the making of an indemnity costs order and an order on the usual basis. However, that factor is not enough to tip the balance in favour of granting leave to appeal against the failure to make the indemnity costs order.
[8]
I propose that the application for leave to cross appeal, insofar as it relates to the applications for leave to cross appeal against the two costs orders, be dismissed with costs.
[9]
BARRETT JA : I agree.
[10]
SACKVILLE AJA : I also agree.
[11]
CAMPBELL JA : Those are the orders of the Court.