Cooper v Kinsella (No 2) [2011] NSWCA 140

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cooper v Kinsella (No 2) [2011] NSWCA 140 Hearing dates: On the papers Decision date: 03 June 2011 Before: Allsop P at 1; Hodgson JA at 2; Sackville AJA at 22 Decision: (1) Order that Mr Cooper's legal costs of the proceedings below, to be paid by the respondents, be assessed on an ordinary basis up to and including 28 September 2009 and on an indemnity basis thereafter. (2) Order that Mr Cooper's costs of the appeal, to be paid by the respondents, be assessed on an ordinary basis up to and including 21 January 2011 and on an indemnity basis thereafter. (3) Order that the respondents pay Mr Cooper's costs of the notice of motion filed 21 March 2011. [ Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - Application to vary costs order - Application brought within 14 days limited by UCPR 36.16(3A) but referring to wrong rule - Amended after 14 days to refer to correct rule - Whether indemnity costs justified by contract - Offers of compromise made - Whether court should make order excluding indemnity costs. Legislation Cited: Civil Procedure Act 2005 ss 64 and 65 Uniform Civil Procedure Rules (UCPR) rr 36.16, 51.58 Cases Cited: Abigroup Ltd v Sandtara Pty Ltd [2002] NSWCA 45 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Gomba Holdings (UK) Limited v Minories Finance Limited (No 2) [1993] Ch 171 Nominal Defendant v Hawkins [2011] NSWCA 93 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Category: Costs Parties: Benjamin Robert COOPER (appellant) Ian Anthony KINSELLA (first respondent) Simon STONIER (second respondent) Scott Benjamin WRIGHT (third respondent) Representation: P BEALE/ E CHRYSOSTOMOU (appellant) G B COLYER (respondents) Mills Oakley Lawyers (appellant) Kemp Strang Lawyers (respondents) File Number(s): 2008/319361