New South Wales Court of Appeal CITATION: Coshott v Woollahra Municipal Council [No.2] [2008] NSWCA 221 HEARING DATE(S): 27 May 2008 JUDGMENT DATE: 17 September 2008 JUDGMENT OF: Tobias JA at 1; McColl JA at 2; Handley AJA at 3 DECISION: (1) Cross applications to vary the order for costs made on 4 August 2008 dismissed. (2) No order as to costs. CATCHWORDS: COSTS – Appeal –appeal incompetent – leave to appeal refused – costs – no question of principle. LEGISLATION CITED: Supreme Court Act 1970 PARTIES: Robert Gilbert Coshott (Appellant) Woollahra Municipal Council (Respondent) FILE NUMBER(S): CA 40591/07 SOLICITORS: Robert Gilbert Coshott (Appellant) Deacons (Respondent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 10821/05 LOWER COURT JUDICIAL OFFICER: Whealy J LOWER COURT DATE OF DECISION: 9 August 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40591/07 SC 10821/05 TOBIAS JA MCCOLL JA HANDLEY AJA 17 September 2008 ROBERT GILBERT COSHOTT v WOOLLAHRA MUNICIPAL COUNCIL [No.2] COSTS – Appeal –appeal incompetent – leave to appeal refused – costs – no question of principle. ORDERS (1) Cross applications to vary the order for costs made on 4 August 2008 dismissed. (2) No order as to costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40591/07 SC 10821/05 TOBIAS JA MCCOLL JA HANDLEY AJA SEPTEMBER 2008 ROBERT GILBERT COSHOTT v WOOLLAHRA MUNICIPAL COUNCIL [No. 2] Judgment 1 TOBIAS JA: I agree with Handley AJA. 2 MCCOLL JA: I agree with Handley AJA. 3 HANDLEY AJA: On 4 August 2008 this Court refused leave to appeal from the decision of Whealy J who had upheld the assessment by a Review Panel of the costs payable by the appellant to the Council under a final order of the District Court. 4 The appellant had purported to appeal as of right but under the Supreme Court Act s 101(2)(q) the appeal was incompetent without leave. During the oral hearing on 27 May the Court held that the appeal was incompetent and the appellant then sought leave to appeal. 5 The same notice of appeal also contained an appeal as of right from the decision of Whealy J in other proceedings who had refused to make a declaration that the appellant was entitled to recover costs he had paid the Council. The costs in question had been paid under final orders of the Federal Court, including an order for the payment out to the Council of moneys paid into court by a third party who had been garnisheed by the Council. This part of the appeal was competent but hopeless and was dismissed with brief reasons. 6 In its judgment on 4 August the Court ordered the appellant to pay the costs of the application for leave to appeal and of the appeal. Mr Brabazon of counsel, who attended to take the reserved judgment on behalf of the Council, made an oral application for an order that the appellant pay the costs on an indemnity basis. Directions were then given for the filing of written submissions and these have been received. 7 The Council relies on a Calderbank offer made shortly after the appeal was commenced, the delays and inefficiencies in the appellant's prosecution of the appeal, and the fact that it was without substance. Mr Coshott relies on SCR Pt 51 r 25 and UCPR Pt 51.41. These provided that a respondent who objects to the competency of an appeal must file a notice of motion for the appeal to be dismissed as incompetent. Where this is not done and the Court later dismisses the appeal as incompetent the respondent is not entitled to the costs of the appeal unless the Court otherwise orders, and may even be ordered to pay costs. 8 The Calderbank offer was for the appeal to be dismissed by consent with no order as to costs. The offer was in substance an invitation to surrender rather than an offer of compromise and in my judgment it is entitled to little weight in this case. 9 The Council's failure to comply with UCPR Pt 51 r 41 is a highly relevant consideration. The motion to dismiss the appeal as incompetent would have succeeded. On the other hand the appellant would inevitably have sought leave to appeal. This should have provoked a motion by the Council to dismiss the balance of the appeal as of right on the ground that it was frivolous and vexatious. 10 In a case such as this the Court would not have ordered the summons for leave to appeal to be heard fully as on an appeal. Both motions could have been heard by a bench of two judges, and it would not have been necessary to reproduce much of the material that was in fact reproduced for the appeal. 11 Although both challenges to the judgment of Whealy J. failed in my judgment the challenge to the assessment by the Review Panel was not so hopeless that it should attract an order for indemnity costs. 12 The Council's breach of UCPR Pt 51.41 should deprive it of any entitlement to indemnity costs for that part of the appeal. However the costs of a further hearing of the application for leave to appeal would still have been incurred. There is therefore no reason to deprive the Council of costs or order it to pay any part of the appellant's costs, but it should not have an order on an indemnity basis for this part of the appeal. 13 The delays and inefficiencies in the prosecution of the appeal by the appellant have already attracted orders for costs. In my judgment those delays and inefficiencies, although serious, are not sufficient to attract an entitlement to an order for indemnity costs for the whole or any part of the appeal. 14 In my opinion therefore the order for costs made on 4 August should be confirmed. Since both parties sought a variation in this order in their favour there should be no order as to the costs of those applications. The following orders should be made: (1) Cross applications to vary the order for costs made on 4 August 2008 dismissed. (2) No order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.