Bennette v Cohen (No 2) [2009] NSWCA 162

New South Wales Court of Appeal

CITATION: Bennette v Cohen (No 2) [2009] NSWCA 162

HEARING DATE(S): On the papers

JUDGMENT DATE: 23 June 2009

JUDGMENT OF: Ipp JA at 1; Tobias JA at 2; Campbell JA at 77

(1) As to the appellant's Notice of Motion filed on 21 April 2009: (a) Order (d) made by this Court on 24 March 2009 be rescinded and in lieu thereof the following orders be made: "(i) The respondent to pay the appellant's costs of the proceedings at first instance on the ordinary basis up to and including 28 January 2004 and on an indemnity basis thereafter; DECISION: (ii) The respondent to pay the appellant's costs of the summons for leave to appeal and of the appeal on the ordinary basis but to have with respect to the latter a certificate under the Suitor's Fund Act, 1951 if otherwise qualified." (b) The respondent to pay the appellant's costs of the Notice of Motion filed by the appellant on 21 April 2009. (2) As to the respondent's Notice of Motion filed on 24 April 2009: (a) Order that the Notice of Motion filed by the respondent on 24 April 2009 be dismissed with costs.

CATCHWORDS: PROCEDURE – Costs – Departing from the general rule – Order for costs on indemnity basis – Conduct of parties – Where offer of compromise made and rejected before trial – Whether offer constituted genuine compromise – Whether reasonable in circumstances to reject offer – Whether successful party entitled to costs of appeal on indemnity basis in circumstances where offer of compromise made five years before appeal - Judgments and orders – Amending, varying and setting aside – Effect of entering judgment or order - Stay of proceedings – Whether to grant stay of orders pending special leave application