NSW Caselaw
New South Wales Court of Appeal
CITATION: KOOEE COMMUNICATIONS PTY LTD v PRIMUS TELECOMMUNICATIONS PTY LTD (NO. 2) [2008] NSWCA 85 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): On written submissions
JUDGMENT DATE: 6 May 2008
JUDGMENT OF: Giles JA at 1; Tobias JA at 1; Basten JA at 5
(1) In lieu of the costs order made by the trial judge, order that Kooee pay 50% of Primus' costs of the proceedings in the Equity Division, to be assessed on the ordinary basis. DECISION: (2) Order that Primus pay Kooee's costs of the appeal, to be assessed on the ordinary basis. (3) Grant Primus a certificate under the Suitors' Fund Act 1951 (NSW), if not disqualified under s 6(7).
CATCHWORDS: COSTS – offers of compromise – offer of compromise by defendant – offer not accepted –costs follow the event – offer made less than 24 hours before commencement of trial – whether offer open for such time as reasonable in circumstances – Uniform Civil Procedure Rules r 42.15, r 20.26 - COSTS – costs of appeal – consequence of offer of compromise made prior to trial – indemnity costs – Uniform Civil Procedure Rules r 42.15 - COSTS – costs follow the event - proportionate on level of success
LEGISLATION CITED: Uniform Civil Procedure Rules 2005, rr 20.25, 20.26, 20.27, 42.14, 42.15, 42.15A
Brymount Pty Ltd v Cummins (No. 2) [2005] NSWCA 69 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; 26 IPR 261 Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 Estate of Virgona v De Lautour (No. 2) [2007] NSWCA 323 Fotheringham v Fotheringham [No. 2] [1999] NSWCA 21; 46 NSWLR 194 Hillier v Sheather (1995) 36 NSWLR 44 CASES CITED: Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5 Leda Pty Ltd v Weerden (No. 3) [2006] NSWSC 220 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 The Ombudsman v Laughton [2005] NSWCA 339; 64 NSWLR 114 State of New South Wales v Burton (No. 2) [2006] NSWCA 43 Stuart Pty Ltd v Condor Commercial Insulation Pty Ltd (No. 2) [2006] NSWCA 379 Suresh v Jacon Industries Pty Ltd (No. 2) [2005] NSWCA 270 Trustee for the Salvation Army (NSW) Property Trust v Becker (No. 2) [2007] NSWCA 194
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