AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited (No 2) [2014] NSWCA 238

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited (No 2) [2014] NSWCA 238 Hearing dates: On the papers Decision date: 24 July 2014 Before: Barrett JA at [1] Hoeben JA at [2] Ward JA at [36] Decision: (1) Costs orders made by Levy DCJ as to the trial and by this Court as to the appeal confirmed. (2) The respondent to pay the appellant's costs of this application. [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 by successful respondent to appeal for indemnity costs of trial, indemnity costs of appeal and interest on its costs - no application for indemnity costs made to trial judge - no challenge to costs orders made by District Court in the appeal - dispute as to form of Offer of Compromise made before trial - possibility that evidence may have been called if indemnity costs raised in District Court - claim for indemnity costs of appeal - no offer made in appeal proceedings - reliance placed on offer made in court below - no indication to other party of intention to rely upon pre-trial offer in appeal proceedings - application for interest on costs not raised in District or on appeal - raised for first time after appeal judgment - respondent's application refused. Legislation Cited: Civil Procedure Act 2005 - ss 101(4) and (5) Uniform Civil Procedure Rules 2005 Cases Cited: AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited [2014] NSWCA 46 AV8 Air Charter Pty Limited v Sydney Helicopters [2012] NSWDC 220 Bathurst Regional Council as trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson (No 2) [2012] NSWCA 420 Ettinghausen v Australia Consolidated Press Ltd (1995) 38 NSWLR 404 Hawkesbury District Health Service Ltd & Anor v Patricia Chaker [2010] NSWCA 320 Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211; 84 NSWLR 436 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 246, 53 NSWLR 116 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 The Uniting Church v Takacs (No 2) [2008] NSWCA 172 White v Overland [2001] FCA 1333 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188; 84 NSWLR 311 Category: Costs Parties: AV8 Air Charter Pty Limited - Appellant Sydney Helicopters Pty Limited - Respondent Representation: Counsel: Mr D Fagan SC/Mr T Brennan - Appellant Mr G Curtin SC/Mr G Gregg - Respondent Solicitors: Norton White - Appellant Gilchrist Connell - Respondent File Number(s): 2012/390046 Decision under appeal Citation: [2012] NSWDC 220 Date of Decision: 2012-12-07 00:00:00 Before: Levy DCJ File Number(s): 2010/348326