Motorcycling Events Group Australia Pty Ltd v Kelly (No 2) [2013] NSWCA 399

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Motorcycling Events Group Australia Pty Ltd v Kelly (No 2) [2013] NSWCA 399 Hearing dates: On the papers Decision date: 29 November 2013 Before: Basten JA at [1]; Meagher JA at [11]; Gleeson JA at [12] Decision: 1. Substitute for order (2) made on 29 October 2013 the following order: The appellant to pay the respondent's costs of the proceedings in this Court (including the motion to vary order (2)) to be assessed on the ordinary basis up to 17 October 2012 and thereafter on the indemnity basis. [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: PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - where offer of compromise made - where offer failed to make provision for the disposal of the appeal - r 42.14 Uniform Civil Procedure Rules 2005 - whether respondent defended the appeal on a substantially different basis to that which the Court ultimately decided on appeal Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 36.16(3C), 42.14, 51.47, 51.48 Cases Cited: Hancock v Arnold (No 2) [2009] NSWCA 19 Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361 Category: Costs Parties: Motor Cycling Events Group Australia Pty Ltd (Appellant) David Kelly (Respondent) Representation: Counsel: P Dury (Appellant) J H Reimer (Respondent) Solicitors: A R Conolly & Company (Appellant) Brydens Law Office LP (Respondent) File Number(s): 2012/240492 Decision under appeal Jurisdiction: 9101 Citation: David Kelly v Motorcycling Events Group Australia Pty Limited Date of Decision: 2012-07-06 00:00:00 Before: Curtis DCJ File Number(s): 2010/405573