Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336

New South Wales Court of Appeal

CITATION: Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336

HEARING DATE(S): (On Written Submissions)

JUDGMENT DATE: 16 October 2009

JUDGMENT OF: McColl JA at 1; Campbell JA at 2; Sackville AJA at 27

DECISION: Order 3 made on 22 September 2009 varied by requiring Respondent to pay Appellant's costs in court below on indemnity basis from date of expiry of term in which Offer of Compromise could be accepted. Indemnity costs of the appeal not ordered. Respondent to pay 50% of Appellant's costs of Notice of Motion filed 29 September 2009.

CATCHWORDS: COSTS – indemnity costs – whether indemnity costs for the trial ought to be ordered for a "walk away" offer made in the middle of a trial – date from which indemnity costs should be ordered when defendant had not had a chance to examine certain evidence at time the offer was made – indemnity costs on appeal when there was a failure to make a fresh offer or renew previous offer of compromise on appeal – PROCEDURE – variation of order following entry of judgment – statutory authority to reopen entered orders – time limits on variation

LEGISLATION CITED: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

CATEGORY: Consequential orders

Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 72 ATR 425 Hancock v Arnold (No 2) [2009] NSWCA 19 CASES CITED: Monie v The Commonwealth (No 2) [2008] NSWCA 15 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205