Izzard v Dunbier Marine Products (NSW) Pty Ltd (No 2) [2012] NSWCA 193

Izzard v Dunbier Marine Products (NSW) Pty Ltd (No 2) [2012] NSWCA 193

The Transport Accident Commission of Victoria should only be required to pay the appellants' costs referable to the litigation of the issue whether its statutory policy covered the plaintiff's claim. The Court's previous assessment that this issue accounted for 20 per cent of the first instance proceedings adequately accounted for the fact that the TACV was not a party from the outset, and the post-judgment submissions disclosed no reason to depart from that assessment. Because no cross-claim was brought by the appellants against the TACV, any other indemnity entitlement under the statutory policy should not be the subject of a costs order in these proceedings.

Jurisdiction
Australia
Judgment Date
28 June 2012
Procedural Posture
Appeal Application to Vary Costs Orders Made in Principal Judgment / On the Papers After Judgment Delivered on 10 May 2012
Outcome
The orders made by the Court on 10 May 2012 were not varied, and no order was made as to the costs of the written submissions lodged after judgment was delivered on 10 May 2012.
Legal Topics
['application to Vary Costs Orders' 'costs of Proceedings at First Instance' 'indemnity Under Statutory Policy' 'joinder of Party']
['civil Procedure' 'appeals' 'costs'] ['application to Vary Costs Orders' 'costs of Proceedings at First Instance' 'indemnity Under Statutory Policy' 'joinder of Party']

Case Brief

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Procedural Posture

Appeal Application to Vary Costs Orders Made in Principal Judgment / On the Papers After Judgment Delivered on 10 May 2012

Legal Issues

  1. 1 ["Whether the costs order made on 10 May 2012 requiring the Transport Accident Commission of Victoria to pay 20% of the appellants' costs of the plaintiff's claim should be varied to require payment of all such costs." 'Whether any costs order against the Transport Accident Commission of Victoria should exclude costs incurred before it was joined as a party on 24 March 2010.' 'What order, if any, should be made as to the costs of written submissions lodged after judgment was delivered on 10 May 2012.']

Ratio Decidendi

The Transport Accident Commission of Victoria should only be required to pay the appellants' costs referable to the litigation of the issue whether its statutory policy covered the plaintiff's claim. The Court's previous assessment that this issue accounted for 20 per cent of the first instance proceedings adequately accounted for the fact that the TACV was not a party from the outset, and the post-judgment submissions disclosed no reason to depart from that assessment. Because no cross-claim was brought by the appellants against the TACV, any other indemnity entitlement under the statutory policy should not be the subject of a costs order in these proceedings.

Court Disposition

The orders made by the Court on 10 May 2012 were not varied, and no order was made as to the costs of the written submissions lodged after judgment was delivered on 10 May 2012.

Orders

  • ['That the orders made by the Court on 10 May 2012 should not be varied.' 'That no order should be made as to the costs of the written submissions lodged after judgment was delivered on 10 May 2012.']