Gordon v Lever (No 3)

THE COURT: The Court delivered judgment on the substantive appeal on 13 November 2019: Gordon v Lever (No 2) [2019] NSWCA 275. The Levers were ordered to pay the Gordons’ costs of the appeal.

Subsequent to delivery of judgment, the Gordons have sought to vary this costs order by adding to the costs order in their favour the words “assessed on the ordinary basis up to 4 April 2019, and on an indemnity basis thereafter.” Written submissions have been received and considered by the Court.

This application is put by reference to a without prejudice offer by the Gordons to the Levers dated 4 April 2019 to the following effect:

Whilst it is correct that the Gordons enjoyed a large measure of success on the appeal, the terms upon which the right of carriageway was granted were not precisely those that had been proffered by the Gordons and, as Bell P observed at [99] of the principal decision on the appeal, were “something of an amalgam of the terms proposed by both parties, formulated in a manner designed to give certainty to the parties and clarity as to their rights.”

Further, as Bell P observed at [93]−[95]:

We would not, in the exercise of our discretion, vary the costs order in the way sought by the Gordons, essentially for the same reasons that underpinned the assessment of costs at first instance coupled with the matter referred to at [4] above. Further, any variation of costs orders, had one been appropriate, would not have run from the date of the offer but, rather, from a later date, representing a reasonable time for its consideration.