Gordon v Truong; Truong v Gordon (No 2) [2014] NSWCA 164

Gordon v Truong; Truong v Gordon (No 2) [2014] NSWCA 164

By majority, the Court held that the District Court indemnity costs order should be reinstated. The claim was exempted from CARS because the insurer denied fault on Gordon's part under cl 8.11.1, not because of any timely written allegation under s 81 that Truong's contributory negligence exceeded 25 per cent under cl 8.11.2. Gordon's later assertion of 60 per cent contributory negligence in an Offer of Compromise was too late to establish that the claim would have been exempt from CARS had liability been admitted earlier. The matter went to trial rather than being resolved through the quicker and less expensive CARS process because the insurer denied any liability, contrary to Gordon's...

Jurisdiction
Australia
Judgment Date
26 May 2014
Procedural Posture
Costs Motion in a Motor Vehicle Accident Personal Injury Appeal / Notice of Motion After Court of Appeal Judgment, Determined on the Papers
Outcome
Notice of Motion allowed by majority; District Court costs order reinstated in substance.
Legal Topics
['indemnity Costs' 'ordinary Basis Costs' 'claims Assessment and Resolution Service (cars)' 'contributory Negligence' 'late Admission of Breach of Duty' 'motor Accidents Compensation Act 1999 (nsw)']
['costs' 'motor Accidents Compensation' 'personal Injury Negligence' 'civil Procedure'] ['indemnity Costs' 'ordinary Basis Costs' 'claims Assessment and Resolution Service (cars)' 'contributory Negligence' 'late Admission of Breach of Duty' 'motor Accidents Compensation Act 1999 (nsw)']

Case Brief

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Procedural Posture

Costs Motion in a Motor Vehicle Accident Personal Injury Appeal / Notice of Motion After Court of Appeal Judgment, Determined on the Papers

Legal Issues

  1. 1 ['Whether the Court should vacate the part of its earlier order setting aside the District Court costs order.' 'Whether the costs of the District Court trial should be assessed partly on an indemnity basis because Gordon denied liability until the first day of trial.' 'Whether the claim would have been exempt from the CARS process even if breach of duty had been admitted earlier because contributory negligence of more than 25 per cent would have been alleged.' 'Who should pay the costs of the Notice of Motion.']

Ratio Decidendi

By majority, the Court held that the District Court indemnity costs order should be reinstated. The claim was exempted from CARS because the insurer denied fault on Gordon's part under cl 8.11.1, not because of any timely written allegation under s 81 that Truong's contributory negligence exceeded 25 per cent under cl 8.11.2. Gordon's later assertion of 60 per cent contributory negligence in an Offer of Compromise was too late to establish that the claim would have been exempt from CARS had liability been admitted earlier. The matter went to trial rather than being resolved through the quicker and less expensive CARS process because the insurer denied any liability, contrary to Gordon's...

Court Disposition

Notice of Motion allowed by majority; District Court costs order reinstated in substance.

Orders

  • ['Vacate so much of Order (2) of the orders made by this Court on 4 April 2014 as relates to the costs order in the District Court.' 'Order that the costs of the plaintiff in the District Court be paid by the defendant; order that, for the first three days of the trial, costs be assessed on an indemnity basis, and...