Zhang v Popovic (No. 2) [2016] NSWSC 666

Zhang v Popovic (No. 2) [2016] NSWSC 666

ROC's Offer of Compromise contained a substantial element of compromise, and the plaintiff did not establish any reason to order otherwise under UCPR r 42.15A(2); ROC was therefore entitled to ordinary costs until 10 March 2016 and indemnity costs thereafter. NTI was liable to bear, on an ordinary basis only, the plaintiff's liability for ROC's costs because NTI should have indemnified the first and second defendants, which would have avoided the forensic need to join ROC, and Policy Exclusion 7(f) did not apply to exclude that liability. The plaintiff remained liable for the difference between ROC's indemnity and ordinary costs after 10 March 2016 because the other defendants were not...

Jurisdiction
Australia
Judgment Date
25 May 2016
Procedural Posture
Costs Application Following Judgment on Liability and Indemnity, Including Application for Non Party Costs / Post Judgment Costs Determination
Outcome
Costs orders made; the sixth defendant's notice of motion filed on 26 April 2016 was dismissed.
Legal Topics
['ordinary Costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'bullock Order' 'sanderson Order' 'non Party Costs' 'insurance Indemnity' 'policy Exclusion Clause']
['civil Procedure' 'costs' 'insurance'] ['ordinary Costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'bullock Order' 'sanderson Order' 'non Party Costs' 'insurance Indemnity' 'policy Exclusion Clause']

Case Brief

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Procedural Posture

Costs Application Following Judgment on Liability and Indemnity, Including Application for Non Party Costs / Post Judgment Costs Determination

Legal Issues

  1. 1 ['Whether ROC was entitled to ordinary or indemnity costs against the plaintiff having regard to its Calderbank offer and Offer of Compromise.' "Whether the plaintiff should obtain a Bullock order or Sanderson order requiring unsuccessful defendants to bear the plaintiff's liability for ROC's costs." "Whether Policy Exclusion 7(f) of the Fleet Motor Policy excluded NTI's liability to indemnify the first and second defendants for costs associated with the joinder of ROC." 'Whether separate costs orders should be made for costs thrown away by the vacation of hearing dates on 18 January 2013 and 19 May 2015.' "Whether interest orders beyond s 101 of the Civil Procedure Act 2005 (NSW) should be made for the first and second defendants' costs." "Whether John Tabuso, a non-party and former director of Interfreight, should be ordered to pay NTI's costs incurred and thrown away by reason of the joinder of ROC."]

Ratio Decidendi

ROC's Offer of Compromise contained a substantial element of compromise, and the plaintiff did not establish any reason to order otherwise under UCPR r 42.15A(2); ROC was therefore entitled to ordinary costs until 10 March 2016 and indemnity costs thereafter. NTI was liable to bear, on an ordinary basis only, the plaintiff's liability for ROC's costs because NTI should have indemnified the first and second defendants, which would have avoided the forensic need to join ROC, and Policy Exclusion 7(f) did not apply to exclude that liability. The plaintiff remained liable for the difference between ROC's indemnity and ordinary costs after 10 March 2016 because the other defendants were not...

Court Disposition

Costs orders made; the sixth defendant's notice of motion filed on 26 April 2016 was dismissed.

Orders

  • ["Order the plaintiff to pay the seventh defendant's costs (including any reserved costs) of the proceedings on the ordinary basis until 10 March 2016 and on an indemnity basis thereafter." "Subject to orders (3) and (4), order the first, second and sixth defendants to pay the plaintiff's costs (including any...