New South Wales
Court of Appeal
CITATION: Sheather v Country Energy (No.2) [2007] NSWCA 280 HEARING DATE(S): Matter dealt with on written submissions in Chambers
JUDGMENT DATE:
12 October 2007JUDGMENT OF: Hodgson JA at 1; Ipp JA at 1; Tobias JA at 1 DECISION: The following additional order is made: 5. Mr. Sheather's costs of the proceedings (but not of the appeal) as from 1 May 2004 to be assessed on an indemnity basis. CATCHWORDS: COSTS - Appeal - Offer of compromise below not accepted - No offer in relation to appeal - Indemnity costs granted for the proceedings, not the appeal. CASES CITED: Singh v. Harika (No.2) [2005] NSWCA 212 PARTIES: Louis Sheather - appellant
Country Energy - respondentFILE NUMBER(S): CA 40455/06 SOLICITORS: Baker Deane & Nutt, Queanbeyan for appellant
Phillips Fox, Sydney for respondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1739/06 (Sydney); DC 41/03 (Queanbeyan) LOWER COURT JUDICIAL OFFICER: Walmsley DCJ
CA40455/06
Friday 12 October 2007HODGSON JA
IPP JA
TOBIAS JA
1 THE COURT: On 24 July 2007, the Court of Appeal gave a decision in which it allowed Mr. Sheather’s appeal and gave verdict and judgment in his favour for $160,250.00 plus interest at District Court rates from 20 February 1999. The Court ordered that Country Energy pay Mr. Sheather’s costs of the proceedings and of the appeal.
2 Pursuant to a direction given on 24 July 2007, Mr. Sheather has applied for an order that these costs should be assessed on an indemnity basis as from 1 May 2004. The basis of this application is an offer of compromise dated 27 April 2004, whereby Mr. Sheather offered to compromise his claim on terms that he have judgment for $145,000.00 and that Country Energy pay his costs.
3 In our opinion, Mr. Sheather is entitled to an order that the costs of the proceedings in the District Court be on an indemnity basis: cf. Uniform Civil Procedure Rules, Pt.42 r.14.
4 However, it does not follow that he is entitled to the costs of the appeal on that basis. There was no further of compromise made, and it cannot be said that Country Energy acted unreasonably in opposing the appeal and seeking to retain a judgment in its favour: cf. Singh v. Harika(No.2) [2005] NSWCA 212 at [10] and cases there cited.
5 Accordingly, the Court makes the following additional order:
- 5. Mr. Sheather’s costs of the proceedings (but not of the appeal) as from 1 May 2004 to be assessed on an indemnity basis.
- AGLC
- Sheather v Country Energy (No.2) [2007] NSWCA 280
- Case
- [2007] NSWCA 280
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether Mr. Sheather should be awarded indemnity costs for the original proceedings, given that Country Energy had made an offer of compromise that was not accepted. The Court also considered whether any costs order should be made in relation to the appeal itself.
The Court determined that indemnity costs should be awarded to Mr. Sheather for the original proceedings from 1 May 2004. This decision was based on the fact that Country Energy had made an offer of compromise which was not accepted by Mr. Sheather, and the subsequent proceedings had been conducted on the basis of that offer. However, the Court declined to award indemnity costs for the appeal itself, as no offer of compromise had been made in relation to the appeal proceedings.
Accordingly, the Court ordered that Mr. Sheather's costs of the proceedings, but not of the appeal, from 1 May 2004, were to be assessed on an indemnity basis.
Orders
Orders of the court
The following additional order is made: 5. Mr. Sheather's costs of the proceedings (but not of the appeal) as from 1 May 2004 to be assessed on an indemnity basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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