Thompson v NSW Land and Housing Corporation (No 3) [2013] NSWSC 1658

Thompson v NSW Land and Housing Corporation (No 3) [2013] NSWSC 1658

Pestkil is entitled to interest under s 57 of the Insurance Contracts Act 1984 (Cth) from the date it became unreasonable for Gerling to withhold payment, irrespective of whether Pestkil had paid its legal advisers or suffered out-of-pocket loss; costs of the reference are not recoverable as damages under the insurance contract and each party is to bear its own costs; applications for interest between Pestkil and the defendant are dismissed and each party bears its own costs.

Parties
Cross Claimant: NSW Land & Housing Corporation; Cross Defendant: ACN 005 511 062 Pty Limited (previously known as 'Pestkil'); Cross Claimant: ACN 005 511 062 Pty Limited (previously known as 'Pestkil'); 1st Cross Defendant: NSW Land & Housing Corporation; 2nd Cross Defendant: HDI-Gerling Australia Insurance Company Limited
Jurisdiction
Australia
Judgment Date
13 November 2013
Procedural Posture
Cross Claim / Post Judgment, Costs and Interest Determination
Outcome
Interest to Pestkil under s 57 Insurance Contracts Act until damages were paid; costs of reference not recoverable as damages; each party bears own costs of reference and costs of applications; applications for interest between Pestkil and the defendant dismissed.
Legal Topics
Interest on Insurance Claims, Indemnity and Contribution, Costs of Reference, Damages Under Insurance Contract, Assessment of Legal Costs
Insurance Law Civil Procedure Costs Interest on Insurance Claims Indemnity and Contribution Costs of Reference Damages Under Insurance Contract Assessment of Legal Costs

Case Brief

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Parties

NSW Land & Housing Corporation

Cross Claimant

ACN 005 511 062 Pty Limited (previously known as 'Pestkil')

Cross Defendant

ACN 005 511 062 Pty Limited (previously known as 'Pestkil')

Cross Claimant

NSW Land & Housing Corporation

1st Cross Defendant

HDI-Gerling Australia Insurance Company Limited

2nd Cross Defendant

Procedural Posture

Cross Claim / Post Judgment, Costs and Interest Determination

Legal Issues

  1. 1 Entitlement to interest under s 57 Insurance Contracts Act 1984 (Cth)
  2. 2 Whether expenses incurred post-referral are recoverable as damages under the insurance contract
  3. 3 Characterisation of costs of reference (damages or costs)

Ratio Decidendi

Pestkil is entitled to interest under s 57 of the Insurance Contracts Act 1984 (Cth) from the date it became unreasonable for Gerling to withhold payment, irrespective of whether Pestkil had paid its legal advisers or suffered out-of-pocket loss; costs of the reference are not recoverable as damages under the insurance contract and each party is to bear its own costs; applications for interest between Pestkil and the defendant are dismissed and each party bears its own costs.

Court Disposition

Interest to Pestkil under s 57 Insurance Contracts Act until damages were paid; costs of reference not recoverable as damages; each party bears own costs of reference and costs of applications; applications for interest between Pestkil and the defendant dismissed.

Orders

  • Pestkil to bring in agreed Short Minutes of Order for calculation of interest in accordance with s 57 Insurance Contracts Act 1984 (Cth) and r 32 Insurance Contracts Regulations; each party bears their own costs of reference; each party bears own costs in applications; applications for interest between Pestkil and...