ROADS AND TRAFFIC AUTHORITY v SCROOP; BITUPAVE LTD t/as BORAL ASPHALT v SCROOP SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, BEAZLEY JJA and FITZGERALD AJA 2 December 1998 [1998] NSWCA 188 COSTS — application by successful respondent to have costs awarded on an indemnity basis — opposition by RTA on grounds that no substantial costs were incurred by the respondent in the defence of RTA's appeal over and above the costs incurred in the defence of Bitupave's appeal. Indemnity costs awarded. Beazley JA I agree with Fitzgerald AJA. Handley JA I agree with Fitzgerald AJA. Fitzgerald AJA COSTS Appeals in these matters were dismissed on 30 September 1998. Raymond Frederick Scroop was a successful respondent to each appeal. When judgment was delivered, leave was given to Mr Scroop to apply to have his costs of the appeals on an indemnity basis. That application has not been opposed by RTA, and is only opposed by Bitupave on the basis that "no substantial costs were incurred by Mr Scroop in the defence of [Bitupave's] appeal over and above the costs incurred in the defence of the appeal by...RTA". Because Bitupave had made an offer to RTA in the material proceedings in the court below, RTA was ordered to pay more towards Mr Scroop's costs than Bitupave in those proceedings. Bitupave's offer to RTA did not extend to these appeals, and it is not suggested by Bitupave that its previous offer has any continuing relevance. Briefly stated, the sequence of events leading to the judgment on 30 September 1998 was as follows: 1. Judgments were delivered on the District Court on 16 April 1996. 2. RTA appealed on 22 August 1996. 3. On 26 September and 8 October 1996, Mr Scroop made offers of compromise to RTA and Bitupave, which were not accepted. 4. Although Bitupave had not then appealed, it filed a notice of appeal on 20 November 1996, and, on 10 February 1997, was granted an extension of time for the filing of that appeal. 5. The appeals were heard together. In my opinion it is no more material in these circumstances if Bitupave's appeal occasioned Mr Scroop no substantial costs over and above the costs incurred in respect of the appeal by RTA than it would be material if no substantial costs were incurred by Mr Scroop in respect of the appeal by RTA over and above the costs incurred in respect of the appeal by Bitupave. Since no other matter is put forward by either RTA or Bitupave in opposition to Mr Scroop's primary application, which is for the costs of the appeals on an indemnity basis from the commencement of the appeals, that is the order which I consider should be made. UNREPORTED JUDGMENTS Appeal dismissed. Counsel for the appellant (RTA): B H K Donovan/T Barrett Solicitors for the appellant (RTA): I V Knight - Crown Solicitor Counsel for the appellant (Bitupave): M T McCulloch/T Thawley Solicitors for the appellant (Bitupave): Phillips Fox Counsel for the respondent (Mrs Scroop): R A Smith Solicitors for the respondent (Mrs Scroop): McGirr James Hall & Associates Counsel for the respondent (Mr Scroop): C M Simpson Solicitors for the respondent (Mr Scroop): Turner Freeman Counsel for the respondent (Dukin Holdings/R Scroop): C G Gee QC/G Seib Solicitors for the respondent (Dukin Holdings/R Scroop): Turner Freeman