Bluth v Boyded Industries Pty Ltd (No 2) [2024] NSWCA 194

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bluth v Boyded Industries Pty Ltd (No 2) [2024] NSWCA 194 Hearing dates: On the papers Date of orders: 16 August 2024 Decision date: 16 August 2024 Before: Bell CJ Gleeson JA Harrison JA Decision: (1) Dispense with the requirement in Uniform Civil Procedure Rules 2005 (NSW), r 18.2(1) for the filing of a notice of motion by the appellant / cross-respondent (HWLE) in respect of its application under r 36.16(3A) to vary the costs orders made on 4 April 2024. (2) In relation to the proceedings below, order that order (2) made in this Court on 4 April 2024 be varied so that the costs ordered to be paid be payable on the ordinary basis up to 16 August 2022 and on the indemnity basis thereafter. (3) Order that the costs of this application be costs in the appeal. Catchwords: COSTS – party/party – offers of compromise – where the appellants seek variations to the costs orders made on appeal – where appellants issued offers of compromise to the respondent prior to the commencement of the appeal proceedings – where no notice of motion to vary the costs orders was filed within 14 days of the orders being entered as required by r 36.16(3A) UCPR – whether a letter sent between the parties can be characterised as an application or an intention to make an application to vary a costs order – requirement for a notice of motion dispensed with pursuant to s 14 Civil Procedure Act 2005 (NSW) – where the appellants obtained a judgment that was no less favourable to them than the terms of the offers issued to the respondent – where offers of compromise not renewed between the trial and the appeal Legislation Cited: Civil Procedure Act 2005 (NSW) ss 14, 98 Uniform Civil Procedure Rules rr 1.12, 18.2, 20.26, 36.16, 42.15A Cases Cited: Aukuso v Tahan (No 2) [2018] NSWCA 302 Bathurst Regional Council v Thompson (No 2) [2012] NSWCA 420 Bluth v Boyded Industries Pty Ltd [2024] NSWCA 67 Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 Coastwide Fabrication and Erection Pty Ltd v Honeysett (No 2) [2009] NSWCA 291 Croghan v Blacktown City Council (2019) 100 NSWLR 757; [2019] NSWCA 248 Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133 Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 Grace v Grace (No 9) [2014] NSWSC 1239 Kable v State of New South Wales (No 2) [2012] NSWCA 361 Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Moore v Woodforth (No 2) [2003] NSWCA 46 Morgan v Johnson (1998) 44 NSWLR 578 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Short v Crawley (No 45) [2013] NSWSC 1541 Category: Costs Parties: Dennis Bluth & the 274 others named in Schedule 1 trading as HWL Ebsworth Lawyers (Appellants/Cross-Respondents) Boyded Industries Pty Limited (Respondent/Cross-Appellant) Representation: Counsel: M Jones SC with G Marsden (Appellants/Cross-Respondents) J Giles SC with E Ball (Respondent/Cross-Appellant)