123 259 932 Pty Ltd v Cessnock City Council (Costs) [2023] NSWCA 99

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: 123 259 932 Pty Ltd v Cessnock City Council (Costs) [2023] NSWCA 99 Hearing dates: On the papers Date of orders: 17 May 2023 Decision date: 17 May 2023 Before: Brereton JA Mitchelmore JA Decision: (1) Order that the Respondent pay the appellant $12,740.81 (being interest on the sum of $200,000 referred to in order 5 of the orders made on 16 March 2023). (2) Note that interest on costs payable under the order made on 16 March 2023 is payable pursuant to Civil Procedure Act, s 101(4) and (5) and will be included in the assessed costs pursuant to Legal Profession Uniform Law Application Act, s 70(1)(c)(ii). Catchwords: COSTS – Party/Party – Bases of quantification – Indemnity basis – Where offers of compromise and Calderbank offers made prior to hearing –– Where issues at trial not straightforward – Rejection of offers and persistence in litigation did not warrant costs order on indemnity basis COSTS – Party/Party – Appeals – Factors relevant to the court's discretion when quantifying costs – Whether pre-trial offers relevant in exercise of Court's discretion when quantifying costs – Court will not usually make special costs order where none of the offers renewed prior to the appeal – Where none of the offers such to warrant an indemnity costs order at first instance – No basis for an indemnity costs order on appeal COSTS – Party/Party – Interest on costs – The default position is that interest run from the date of the costs order – It is not necessary that the Court makes an order for interest – No evidence or argument addressed why there should be a departure from the default position – No order for interests on costs should be made Legislation Cited: Civil Procedure Act 2005 (NSW), s 101 Legal Profession Uniform Law Application Act 2014 (NSW), s 70(1)(c)(ii) Supreme Court Act 1970 (NSW) s 46(2)(b), s 46B(2) Uniform Civil Procedure Rules 2005 (NSW), r 20.26, r 42.13A(2), r 42.14, r 51.49 Cases Cited: Bathurst Regional Council v Thompson (No 2) [2012] NSWCA 420 Chief Commissioner of State Revenue v E Group Security Pty Ltd (No 3) [2023] NSWCA 63 Curtis v Harden Shire Council (No 2) [2015] NSWCA 45 Diamond v Simpson (No 2) [2003] NSWCA 78 Drummond & Rosen Pty Ltd v Easey (No 2) [2009] NSWCA 331 Duffin v Mount Arthur Coal Pty Ltd (No 2) [2020] NSWSC 790 Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72 Jones v Bradley (No 2) [2003] NSWCA 258 Lahoud v Lahoud [2006] NSWSC 126 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Robb Evans v European Bank Ltd (No 2) [2009] NSWCA 170 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188 Texts Cited: Chief Justice's Review of the Costs Assessment Scheme Category: Costs Parties: 123 259 932 Pty Limited, ACN 123259932 (Appellant) Cessnock City Council (Respondent) Representation: Counsel: D L Williams SC w B D Kaplan (Appellant) D L Cook SC w G Ng (Respondent)