Gold & Copper Resources Pty Limited v The Hon Chris Hartcher, Minister for Resources & Energy, Special Minister (No 2)

THE COURT: The principal judgment in this matter was delivered by this Court on 19 March 2015: Gold & Copper Resources Pty Limited v The Hon Chris Hartcher, Minister for Resources & Energy, Special Minister [2015] NSWCA 57. The respondents were successful and an order was made that the appellant pay their costs of the appeal.

In an amended notice of motion filed 13 April 2015, the second respondent sought that $45,000 paid into Court by the appellant as partial security for the proceedings be released to it. That order was granted by a judgment of Barrett JA made on 13 April 2015.

The first and second respondents also sought that, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.16(3A), order 2 of the orders of the Court made 19 March 2015 be varied to order that the appellant pay the respondents’ costs of the proceedings on a party/party basis up to and including 20 January 2015 and on an indemnity basis thereafter. In seeking this order, the respondents relied on an offer of compromise made on 20 January 2015, by which they jointly offered to settle the proceedings on terms that the appeal be dismissed with no order as to costs. The appellant made no submission on this issue.

Rule 36.16(3A) provides that the Court may vary an order or judgment made if a party files a notice of motion seeking the variation within 14 days after the judgment or order is entered. Whilst the amended notice of motion was filed after that period, an original notice of motion was filed on 2 April 2015, which was within the 14 day period. That notice of motion sought an order to the same effect as that in the amended notice of motion, but did not seek to set aside order 2 of the judgment of 19 March 2015, or refer to r 36.16(3A). However, as the substantive order sought by the respondents in the original notice of motion was clear, the Court’s power to vary its orders pursuant to r 36.16(3A) was enlivened: Taheri v Vitek (No 2) [2014] NSWCA 344 at [6]-[7].

The respondents submitted that the effect of rr 42.15A and 51.48 is that they are entitled to the costs order they seek. Rule 42.15A provides as follows:

The relevant effect of r 51.48 is that r 42.15A applies to proceedings in this Court with necessary changes, including that “plaintiff” is to be read as “appellant” and “defendant” is to be read as “respondent”.

The orders made by the Court on 19 March 2015 were no less favourable than the terms of the offer of compromise made on 20 January 2015. As such, r 42.15A applies and the respondents are entitled to the order that they seek “unless the court orders otherwise”. The respondents submitted that there was no reason for the Court to make some other order. The offer was made after all parties’ written submissions had been filed, such that the appellant was aware of the nature of the argument to be put against them: Taheri v Vitek (No 2) at [13]. Further, the offer was made at a time when the respondents had incurred substantial costs, with the second respondent’s costs alone being then in the vicinity of $82,000 plus GST. The offer therefore represented a genuine compromise: Botany Bay City Council v Latham (No 2) [2013] NSWCA 450 at [13]; Taheri v Vitek (No 2) at [13].

The respondents’ submissions should be accepted and, as already noted, there was no opposition to the orders sought.

It follows that the respondents are entitled to the order that they seek. Accordingly, the Court makes the following orders: