Curtis v Harden Shire Council (No 2) [2015] NSWCA 45

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Curtis v Harden Shire Council (No 2) [2015] NSWCA 45 Hearing dates: On the papers Decision date: 16 March 2015 Before: Bathurst CJ; Beazley P; Basten JA Decision: (1)Amend order 4 made by the Court in the appeal proceedings so as to delete therefrom the words "and of the appeal".

(2)Order that the respondent pay the appellant's costs of the appeal assessed on the ordinary basis up to 24 September 2013 and on and from that date on an indemnity basis.

(3)Otherwise dismiss the notice of motion with no order as to costs. Catchwords: COSTS – indemnity costs – effects of offers of compromise – whether offer including "costs as agreed or assessed" complies with UCPR, r 20.26 – whether offer of compromise was genuine – whether refusal of offer was reasonable – whether order other than as provided for by UCPR, r 42.14 should be made

COSTS – indemnity costs – whether offer that is not compliant with UCPR, r 20.26 can have effect as Calderbank offer – where party making non-compliant offer seeks exercise of discretion to order indemnity costs pursuant to Civil Procedure Act 2005, s 98 and UCPR, r 42.2 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.2, 42.14 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586 Curtis v Harden Shire Council [2014] NSWCA 314 Old v McInnes and Hodgkinson [2011] NSWCA 410 Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 Category: Costs Parties: CA 2012/241825 John Curtis (Appellant) Harden Shire Council (Respondent) CA 2012/241832 John Curtis on behalf of himself and Jasmine Paterson, Jacob Paterson, Angus Curtis and Emily Curtis (Appellant) Harden Shire Council (Respondent) Representation: Counsel: H M Marshall SC / R Taylor (Appellants) R Sheldon SC (Respondent)