Bartlett v Coomber (No 2) [2008] NSWCA 282

New South Wales Court of Appeal

CITATION: Bartlett v Coomber (No 2) [2008] NSWCA 282

HEARING DATE(S): directions made by Mason P 23 May 2008

JUDGMENT DATE: 30 October 2008

JUDGMENT OF: Hodgson JA at 1; Bryson AJA at 10

DECISION: Application for indemnity costs dismissed with costs.

CATCHWORDS: APPEAL – COSTS – Appeal dismissed with costs – Respondent seeks indemnity costs on basis of manner of conduct of appeal and Calderbank offer – Case for indemnity costs not made out.

CATEGORY: Principal judgment

CASES CITED: Commonwealth of Australia v Gretton [2008] NSWCA 117

Peter Douglas BARTLETT (appellant) PARTIES: Katherine COOMBER bnf Veronica Coomber (first respondent) Susan STOTT (second respondent)

FILE NUMBER(S): CA 40387/07

by written submissions: COUNSEL: J M IRELAND QC (appellant) M BRADFORD (first respondent)

SOLICITORS: Bizannes & Associates (appellant) Peacockes (first respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40387/07 SC 5562/06

HODGSON JA BRYSON AJA

30 OCTOBER 2008 Peter Douglas BARTLETT v Katherine COOMBER and Anor (No 2) Judgment 1 HODGSON JA: On 25 May 2008, this Court gave its principal judgment in this appeal, in which it dismissed the appeal with costs. The first respondent has applied for an order that her costs be assessed on an indemnity basis. Due to the retirement of Mason P, the parties have agreed that the remaining two judges dispose of this application. 2 Two grounds are relied on: (1) The manner in which the appellant conducted the appeal. (2) The making and refusal of a Calderbank offer. 3 As regards the first ground, the first respondent contends that the appellant failed to pursue any of its original grounds of appeal, and occasioned the first respondent unnecessary costs in covering hopeless points. 4 It is true that the appellant, by its written and oral submissions, put a case that bore little resemblance to the grounds of appeal; but the case put in the written and oral submissions was the case that was answered by the first respondent's written and oral submissions, and in my opinion the first respondent was not occasioned any significant unnecessary costs. The case pursued in the appellant's submissions was not hopeless. Further, part of the first respondent's response involved the belated filing of a notice of contention. 5 I do not think the first ground justifies departure from the usual basis for assessing costs. 6 As regards the second ground, the offer was made about four weeks before the hearing of the appeal, and in effect it offered a reduction of about $14,000 from the judgment and interest totalling about $660,000. The offer did not specify what was to happen in relation to the costs of the appeal, although it indicated clearly enough that the first respondent would still be claiming the costs of the trial. I think the better view is that the offer was such that, if accepted, the first respondent would not claim any costs of the appeal; and in any event if there were doubt, the appellant could have clarified this. 7 Generally, the Court will order indemnity costs on the basis of refusal of a Calderbank offer (as distinct from an offer of compromise under the Rules) only if it considers the refusal of that offer unreasonable: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [114]-[117]. 8 In the present case, the Calderbank offer involved only a small advantage to the appellant; and in circumstances where the appellant had a reasonable basis for an appeal, I do not consider refusal of the offer unreasonable. 9 In my opinion, the application for indemnity costs should be dismissed with costs. 10 BRYSON AJA: This is not a case for indemnity costs. There were substantial matters for consideration in the appeal, and they required the Court's extended consideration. There was no delinquency in the appellant's conduct of the appeal. Costs wasted in preparing to meet grounds of appeal which the appellant did not pursue are recoverable on ordinary principles of assessment. The Calderbank offer had no real element of compromise in it, and was not clear in what it proposed as to costs. The offer was made late in the pendency of the appeal, about four weeks before the appointed hearing day, and was open for little more than a week. The Notice of Contention had not then been filed, and it was significant for the respondents' success. 11 I agree with Hodgson JA. **********