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[2015] NSWCA 131

Salmon v Osmond (No 2)

(1) Vary order 5 of the judgment of this Court of 10 March 2015 as follows: “5. In lieu of order 5 in the judgment of the court below of 17 September 2013, order that the second respondent, Donna Maree Peters, pay the appellants’ costs of proceedings in the court below, on the ordinary basis up to and including 8 January 2013 and on an indemnity basis as and from 9 January 2013.” (2) Vary order 6 of the judgment of the court below of 17 September 2013 as follows: “6. The costs referred to in (5) shall be determined as 20 per cent of the costs incurred by the estate in defending the proceedings brought by the first plaintiff and the third plaintiff and shall be credited to the amounts to be distributed from the estate to the first defendant and second defendant in proportion to the amounts paid from their share of the estate to satisfy order (7).” (3) The first and second respondents should pay the costs of the appellants’ notice of motion filed 23 March 2015.

Catchwords

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005, rr 36.16, 36.17 – slip rule – whether no order as to costs prior to offer of compromise

Legislation cited

  • Uniform Civil Procedure Rules 2005 (NSW), § 36.16(3A), 36.17

Judgment

  1. [1]

    THE COURT: This Court delivered its principal judgment in this matter on 10 March 2015: Salmon v Osmond [2015] NSWCA 42. The appellants were substantially successful in the appeal and costs orders were made in their favour. This included making the following costs order (order 5) having regard to a Calderbank offer of compromise that had been made to the second respondent, Donna Maree Peters (Donna), which had not been accepted:

  2. [2]

    By notice of motion filed 23 March 2015, the appellants sought that order 5 be varied pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.17, known as the “slip rule”. Rule 36.17 provides as follows:

  3. [3]

    The appellants also relied upon UCPR, rr 36.16(1) and (3A). The former rule allows an order to be varied if application is made to do so before the entry of judgment. The latter rule permits an order to be varied under r 36.16(1) as if the judgment or order had not been entered, if a notice of motion seeking the variation is filed within 14 days after the order has been entered. The notice of motion was filed within that time and accordingly provides another source of power for the variation of the orders.

  4. [4]

    The appellants submitted that the word “respondents” in order 5 is a slip to which r 36.17 would apply, and that the word “respondents” in that order should be replaced with the word “appellants”. That is clearly correct. By order 5, the Court intended to give effect to the finding, at [168] of the judgment, that the appellants should have indemnity costs on the basis of an offer of compromise made to Donna on 8 January 2013.

  5. [5]

    The appellants further submitted that, by order 5, the Court intended that Donna pay the appellants’ costs of the first instance proceedings on the ordinary basis up to the date of the offer and that the terms of the order be clarified to that effect. However, the respondents have contended that the Court intended that, in accordance with the terms of the offer of compromise, there be no order as to the costs of the proceedings up to the date of the offer.

  6. [6]

    The appellants’ contention is correct. It would be extremely unusual for the Court to make an order of the kind suggested by the respondents and it should not be inferred that it has done so. As Donna was not successful in the proceedings below, and the substantive findings in those proceedings relating to her were not challenged on appeal, the appropriate order, and the order the Court intended to convey, is that she pay the appellants’ costs of the first instance proceedings on the ordinary basis until the date of the offer of compromise and thereafter on the indemnity basis.

  7. [7]

    As a consequence of this amendment, order 6 of the costs judgment below: Peters v Salmon (No 2) [2013] NSWSC 1071, must also be varied to accommodate the indemnity costs aspect of order 5 made by the Court in its judgment on the appeal.

  8. [8]

    These variations may appropriately be made under either UCPR, r 36.16(3A) or r 36.17.

  9. [9]

    The appellants seek and the respondents resist an order for the costs of the notice of motion. As the respondents raised a substantive dispute in respect of the appellants’ costs of the first instance proceedings in the period up to the date of the offer of compromise and they were not successful in that argument, it is appropriate that they pay the appellants’ costs of the notice of motion.

  10. [10]

    Accordingly, the Court makes the following orders:

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.