APFC No.1 Corporation v Insurance Australia Limited (No 2) [2024] NSWSC 818

APFC No.1 Corporation v Insurance Australia Limited (No 2) [2024] NSWSC 818

Tokio Marine did not establish a basis to exercise the power under UCPR r 36.16(3A). The earlier costs order was a deliberate exercise of discretion based on mixed success on the Security Application, not an inadvertent error or relevant misapprehension. Tokio Marine had not foreshadowed at the hearing that it wished to be heard separately on costs or rely on without prejudice correspondence, although it could have indicated that costs might need to be reserved. The Calderbank correspondence in any event did not justify a different costs order because it preceded a substantial change in the amount and evidence supporting the Security Application.

Jurisdiction
Australia
Judgment Date
03 July 2024
Procedural Posture
Costs; Application to Vary Costs Order / Notice of Motion Filed 22 May 2024 Seeking Variation Under Uniform Civil Procedure Rules 2005 (nsw), R 36.16(3 A), Determined on the Papers
Outcome
Notice of Motion filed 22 May 2024 dismissed, with costs.
Legal Topics
['variation of Orders' 'security for Costs' 'costs Discretion' 'ucpr R 36.16(3 A)' 'calderbank Correspondence']
['civil Procedure' 'costs'] ['variation of Orders' 'security for Costs' 'costs Discretion' 'ucpr R 36.16(3 A)' 'calderbank Correspondence']

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Procedural Posture

Costs; Application to Vary Costs Order / Notice of Motion Filed 22 May 2024 Seeking Variation Under Uniform Civil Procedure Rules 2005 (nsw), R 36.16(3 A), Determined on the Papers

Legal Issues

  1. 1 ['Whether Tokio Marine established a basis under Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) to vary Order 5 made on 8 May 2024 concerning costs of the Security Application.' "Whether the Court's earlier order that there be no order as to costs reflected an inadvertent error or misapprehension, rather than a deliberate discretionary decision based on mixed success." "Whether the Court misapprehended Tokio Marine's wish to be heard on costs or the relevance of without prejudice correspondence that was not before the Court at the Security Application hearing." 'Whether the Calderbank correspondence justified a different costs order.']

Ratio Decidendi

Tokio Marine did not establish a basis to exercise the power under UCPR r 36.16(3A). The earlier costs order was a deliberate exercise of discretion based on mixed success on the Security Application, not an inadvertent error or relevant misapprehension. Tokio Marine had not foreshadowed at the hearing that it wished to be heard separately on costs or rely on without prejudice correspondence, although it could have indicated that costs might need to be reserved. The Calderbank correspondence in any event did not justify a different costs order because it preceded a substantial change in the amount and evidence supporting the Security Application.

Court Disposition

Notice of Motion filed 22 May 2024 dismissed, with costs.

Orders

  • ['The Notice of Motion filed 22 May 2024 is dismissed, with costs.']