BRYMOUNT PTY. LIMITED t/a WATSON TOYOTA (ACN 003 200 459) v. CUMMINS & ANOR. YOUNG SHIRE COUNCIL v. CUMMINS & ANOR. (NO. 2) [2005] NSWCA 69

New South Wales Court of Appeal

CITATION: BRYMOUNT PTY. LIMITED t/a WATSON TOYOTA (ACN 003 200 459) v. CUMMINS & ANOR. YOUNG SHIRE COUNCIL v. CUMMINS & ANOR. (NO. 2) [2005] NSWCA 69

HEARING DATE(S): On papers

JUDGMENT DATE: 17 March 2005

JUDGMENT OF: Beazley JA at 1; Ipp JA at 33; McColl JA at 34

DECISION: Appeal No. 41169/03 (Brymount's appeal) ; 1 That the first respondent pay the appellant's costs up to 27 January 2003 on a party and party basis;; 2 That the first respondent pay the appellant's costs in respect of the trial from 28 January 2003 on an indemnity basis;; 3 That the first respondent pay the appellant's costs in respect of the appeal on a party and party basis; and; 4 That the first respondent have a Certificate under the Suitors Fund Act 1951 (NSW), if so entitled.; 5. That there be no order as to costs in respect of the second respondent.; Appeal No. 41170/03 (Council's appeal) ; 1 That the first respondent pay the appellant's costs up to 17 June 2002 on a party and party basis;; 2. That the first respondent pay the appellant's costs in respect of the trial from 18 June 2002 on an indemnity basis;; 3 That the first respondent pay the appellant's costs in respect of the appeal on a party and party basis; and; 4. That the first respondent have a Certificate under the Suitors Fund Act 1951 (NSW), if so entitled.; 5. That there be no order as to the costs in respect of the second respondent.

CATCHWORDS: COSTS - offers of compromise - Calderbank offers - relevance of Calderbank offers to offers of compromise made under the District and Supreme Court Rules - courts' general discretion as to costs - COSTS - indemnity costs - Calderbank offer made prior to trial but not renewed or revived between trial and appeal - whether party is entitled to indemnity costs extending from the trial to appeal proceedings in the absence of a fresh offer of compromise