Cutting Edge Services Pty Ltd v Raymond & Therese Penfold; Raymond & Therese Penfold v The Hollard Insurance Company Pty Ltd (No 2) [2022] NSWSC 516

Cutting Edge Services Pty Ltd v Raymond & Therese Penfold; Raymond & Therese Penfold v The Hollard Insurance Company Pty Ltd (No 2) [2022] NSWSC 516

Costs followed the event as proceedings were factually complex, justifying departure from ordinary outcome under r 42.34; indemnity costs were warranted for periods following unreasonable rejection of genuine offers of compromise by the losing party in both the principal claim and the cross-claim; there was no sufficient nexus between the plaintiff's claim and the defendants' cross-claim to justify a Bullock or Sanderson order; set-off of costs/damages/insurance payment was not warranted given the lack of costs assessment and capacity concerns; interest on damages was limited due to plaintiff’s conduct causing adjournment.

Jurisdiction
Australia
Judgment Date
02 May 2022
Procedural Posture
Costs Application in Civil Proceedings (tort Claim and Insurance Cross Claim) / Post Judgment Costs Determination Following Principal Judgment
Outcome
Costs and interest orders made as follows: (1) Defendants to pay plaintiff’s costs on the ordinary basis from 1 February 2018 until 2 July 2020; (2) Plaintiff to pay defendants’ costs from 3 July 2020 on an indemnity basis; (3) Defendants to pay cross-defendant’s costs on the ordinary basis from 1 May 2018 until 29...
Legal Topics
['costs' 'indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'set Off' 'interest on Judgment' 'cross Claims' 'measure of Damages']
['civil Procedure' 'insurance Law' 'tort Law'] ['costs' 'indemnity Costs' 'calderbank Offers' 'offers of Compromise' 'set Off' 'interest on Judgment' 'cross Claims' 'measure of Damages']

Case Brief

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Procedural Posture

Costs Application in Civil Proceedings (tort Claim and Insurance Cross Claim) / Post Judgment Costs Determination Following Principal Judgment

Legal Issues

  1. 1 ['Whether costs should follow the event or be otherwise ordered under UCPR r 42.34 when the plaintiff obtained judgment under $500,000' 'Whether indemnity costs should be awarded for rejection of offers of compromise or Calderbank offers' 'Whether plaintiff should be liable for cross-defendant’s costs or indemnify defendants for such costs' 'Whether set-off of costs, damages, or insurance payments is appropriate' 'Whether and for what period interest should be payable on the damages award']

Ratio Decidendi

Costs followed the event as proceedings were factually complex, justifying departure from ordinary outcome under r 42.34; indemnity costs were warranted for periods following unreasonable rejection of genuine offers of compromise by the losing party in both the principal claim and the cross-claim; there was no sufficient nexus between the plaintiff's claim and the defendants' cross-claim to justify a Bullock or Sanderson order; set-off of costs/damages/insurance payment was not warranted given the lack of costs assessment and capacity concerns; interest on damages was limited due to plaintiff’s conduct causing adjournment.

Court Disposition

Costs and interest orders made as follows: (1) Defendants to pay plaintiff’s costs on the ordinary basis from 1 February 2018 until 2 July 2020; (2) Plaintiff to pay defendants’ costs from 3 July 2020 on an indemnity basis; (3) Defendants to pay cross-defendant’s costs on the ordinary basis from 1 May 2018 until 29...

Orders

  • ["The defendants are to pay the plaintiff's costs on the ordinary basis from 1 February 2018 until 2 July 2020." "The plaintiff is to pay the defendants' costs from 3 July 2020 on an indemnity basis." "The defendants are to pay the cross-defendant's costs on the ordinary basis from 1 May 2018 until 29 November 2019...