Martinez as trustee for Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers v Griffiths as trustee for the Griffiths HWL Practice Trust (No 2) [2020] NSWCA 42

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Martinez as trustee for Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers v Griffiths as trustee for the Griffiths HWL Practice Trust (No 2) [2020] NSWCA 42 Hearing dates: On the papers Decision date: 17 March 2020 Before: Bell ACJ; Meagher JA; Barrett AJA Decision: (1) The appellant pay the respondent's costs of and associated with the proceedings at first instance on an ordinary basis up to 19 January 2017, as agreed or assessed.

(2) Subject to order 3 below, the appellant pay the respondent's costs of and associated with the proceedings at first instance on an indemnity basis from 20 January 2017 to 17 December 2019, as agreed or assessed.

(3) The respondent pay the appellant's costs thrown away by the vacation of the hearing in the District Court below before Acting Judge CJ Armitage on 26 September 2017, as agreed or assessed.

(4) Each party to bear their own costs of and associated with the appeal proceedings up to 30 August 2019.

(5) The appellant pay the respondent's costs of and associated with the appeal proceedings on an indemnity basis from 31 August 2019, as agreed or assessed. Catchwords: COSTS – appeals – offers of compromise – where respondent (plaintiff) achieved a result on appeal no less favourable than his rejected offer of compromise – where application of UCPR r 42.14 as modified by r 51.48(1) engaged – where appellant's rejection of offer unreasonable – where respondent's "favourable" judgment, measured by reference to that offer, also represented a successful outcome to appellant (defendant) in the appeal – discretion to "order otherwise" in relation to costs of appeal, both before and after making of offer Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), Pt 42, Div 3, rr 42.14, 51.47, 51.48, 51.49 Cases Cited: Croghan v Blacktown City Council [2019] NSWCA 248 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Morgan v Johnson (1998) 44 NSWLR 578 Category: Costs Parties: Martinez as trustee for Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers (appellant) Griffiths as trustee for the Griffiths HWL Practice Trust (respondent) Representation: Counsel: JD Williams (respondent)