(Re Nicholson) Amaca Pty Ltd v Harry Daines Pty Ltd [2011] NSWDDT 3

(Re Nicholson) Amaca Pty Ltd v Harry Daines Pty Ltd [2011] NSWDDT 3

The Claims Resolution Process and cl 52 of the Regulation did not authorise entry of judgment on the cross-claim merely because Harry Daines accepted and paid its assessed contribution for the purposes of the plaintiff's settlement. There had been no hearing on the merits and no initial and continuing refusal by Harry Daines to accept the Contributions Assessor's determination causing Amaca to incur costs. Accordingly Amaca was not entitled to costs of the cross-claim, and the appropriate course was to dismiss the cross-claim with no order as to its costs, while Amaca was to pay Harry Daines' costs of the costs application.

Jurisdiction
Australia
Judgment Date
19 April 2011
Procedural Posture
Application for Costs on Cross Claim in Dust Diseases Tribunal Proceedings / Ruling After Settlement of the Plaintiff's Claim and Payment by Cross Defendant of Assessed Contribution, With No Judgment Entered on the Cross Claim
Outcome
Cross-claim dismissed; Amaca not awarded costs of the cross-claim; Amaca to pay Harry Daines' costs of the application.
Legal Topics
['claims Resolution Process' 'contributions Assessor Determination' 'apportionment Among Defendants' 'costs Where No Hearing on the Merits' 'dismissal of Cross Claim']
['dust Diseases Litigation' 'civil Procedure' 'costs' 'contribution Between Defendants'] ['claims Resolution Process' 'contributions Assessor Determination' 'apportionment Among Defendants' 'costs Where No Hearing on the Merits' 'dismissal of Cross Claim']

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Procedural Posture

Application for Costs on Cross Claim in Dust Diseases Tribunal Proceedings / Ruling After Settlement of the Plaintiff's Claim and Payment by Cross Defendant of Assessed Contribution, With No Judgment Entered on the Cross Claim

Legal Issues

  1. 1 ["Whether Amaca was entitled to judgment on the cross-claim after Harry Daines accepted the Contributions Assessor's determination and paid its assessed proportion of the plaintiff's damages." 'Whether Amaca was entitled to costs of the cross-claim against Harry Daines in the absence of a hearing on the merits or judgment on the cross-claim.' "What order should be made in respect of Amaca's cross-claim."]

Ratio Decidendi

The Claims Resolution Process and cl 52 of the Regulation did not authorise entry of judgment on the cross-claim merely because Harry Daines accepted and paid its assessed contribution for the purposes of the plaintiff's settlement. There had been no hearing on the merits and no initial and continuing refusal by Harry Daines to accept the Contributions Assessor's determination causing Amaca to incur costs. Accordingly Amaca was not entitled to costs of the cross-claim, and the appropriate course was to dismiss the cross-claim with no order as to its costs, while Amaca was to pay Harry Daines' costs of the costs application.

Court Disposition

Cross-claim dismissed; Amaca not awarded costs of the cross-claim; Amaca to pay Harry Daines' costs of the application.

Orders

  • ['The cross-claim is dismissed with no order as to costs.' "Amaca should pay Harry Daines' costs of this application as agreed or assessed."]