Wagga Truck Towing Pty Ltd v O'Toole; IAG Limited t/as NRMA Insurance v O'Toole (No 2) [2011] NSWCA 347

Wagga Truck Towing Pty Ltd v O'Toole; IAG Limited t/as NRMA Insurance v O'Toole (No 2) [2011] NSWCA 347

Acceptance of entitlement to indemnity costs should have been indicated by NRMA and Wagga Towing prior to Mr O'Toole filing his notice of motion, thus justifying an order that they pay his costs thereof. There was no basis for further apportionment or for NRMA's claim that Wagga Towing should pay its costs of appeal beyond orders already made.

Parties
First Appellant / Second Respondent to Second Appeal: Wagga Truck Towing Pty Ltd; Second Respondent / Appellant in Second Appeal: Insurance Australia Ltd t/as NRMA Insurance (also referred to as IAG Ltd t/as NRMA Insurance); First Respondent / First Respondent to Second Appeal: Dean O'Toole
Jurisdiction
Australia
Judgment Date
18 November 2011
Procedural Posture
Appeal / Post Judgment Applications Regarding Costs
Outcome
Costs orders made and varied; NRMA's notice of motion dismissed with costs.
Legal Topics
Costs
Civil Procedure Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 1 Party arguments 2
Sign in to unlock

Parties

Wagga Truck Towing Pty Ltd

First Appellant / Second Respondent to Second Appeal

Insurance Australia Ltd t/as NRMA Insurance (also referred to as IAG Ltd t/as NRMA Insurance)

Second Respondent / Appellant in Second Appeal

Dean O'Toole

First Respondent / First Respondent to Second Appeal

Procedural Posture

Appeal / Post Judgment Applications Regarding Costs

Legal Issues

  1. 1 Whether costs order in favour of Mr O'Toole should be on a party/party basis to 31 August 2010 and on an indemnity basis from 1 September 2010
  2. 2 Whether NRMA and Wagga Towing should pay Mr O'Toole's costs of the notice of motion filed on 29 July 2011
  3. 3 Whether Wagga Towing should pay all or part of NRMA's costs of appeal and District Court cross-claim

Ratio Decidendi

Acceptance of entitlement to indemnity costs should have been indicated by NRMA and Wagga Towing prior to Mr O'Toole filing his notice of motion, thus justifying an order that they pay his costs thereof. There was no basis for further apportionment or for NRMA's claim that Wagga Towing should pay its costs of appeal beyond orders already made.

Court Disposition

Costs orders made and varied; NRMA's notice of motion dismissed with costs.

Orders

  • Vary order (4) made on 15 July 2011 to: 'Wagga Towing and NRMA to pay Mr O'Toole's costs of both appeals on a party/party basis to 31 August 2010 and on an indemnity basis from 1 September 2010 (apportioned 50:50 between themselves)'
  • NRMA and Wagga Towing to pay Mr O'Toole's costs of his notice of motion filed on 29 July 2011 on a party/party basis