Furka v Allianz Australia Insurance Ltd (re Torok) [2023] NSWDDT 4

Furka v Allianz Australia Insurance Ltd (re Torok) [2023] NSWDDT 4

This was not an exceptional case warranting departure from the default rule: the additional evidence served after the offer of compromise simply added to material of the same type and did not significantly change the plaintiff’s case. The defendant had sufficient material at the time to assess the risks and quantum of the claim and to make an informed decision; therefore, indemnity costs apply from the day following expiry of the offer of compromise. The Calderbank offer was not open for a reasonable time, so non-acceptance was not unreasonable and does not justify indemnity costs.

Jurisdiction
Australia
Judgment Date
31 July 2023
Procedural Posture
Costs Determination Following Substantive Judgment / Post Judgment, Determining Costs Orders
Outcome
Application for indemnity costs granted in part based on Offer of Compromise; Calderbank basis rejected.
Legal Topics
['costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'mesothelioma Claims' 'asbestos Exposure']
['civil Procedure' 'torts'] ['costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'mesothelioma Claims' 'asbestos Exposure']

Case Brief

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Procedural Posture

Costs Determination Following Substantive Judgment / Post Judgment, Determining Costs Orders

Legal Issues

  1. 1 ['Whether indemnity costs should be ordered under cl 89 of the Dust Diseases Tribunal Regulation 2019 (NSW) after judgment more favourable than an Offer of Compromise' "Whether this constitutes an 'exceptional case' and 'substantial injustice' justifying departure from default indemnity costs order" 'Whether non-acceptance of a Calderbank offer was unreasonable warranting indemnity costs']

Ratio Decidendi

This was not an exceptional case warranting departure from the default rule: the additional evidence served after the offer of compromise simply added to material of the same type and did not significantly change the plaintiff’s case. The defendant had sufficient material at the time to assess the risks and quantum of the claim and to make an informed decision; therefore, indemnity costs apply from the day following expiry of the offer of compromise. The Calderbank offer was not open for a reasonable time, so non-acceptance was not unreasonable and does not justify indemnity costs.

Court Disposition

Application for indemnity costs granted in part based on Offer of Compromise; Calderbank basis rejected.

Orders

  • ["Order the defendant to pay the plaintiff's costs of the proceedings on a party and party basis up to and including 15 March 2023, and on an indemnity basis from the beginning of 16 March 2023." "Order the defendant to pay the plaintiff's costs of this costs determination, such costs being on an indemnity basis as...