Chapman v. Taylor & Ors; Vero Insurance Ltd. v. Taylor & Ors [2005] NSWCA 11

Chapman v. Taylor & Ors; Vero Insurance Ltd. v. Taylor & Ors [2005] NSWCA 11

Vero was not entitled to indemnity costs because, having regard to the difficulty of the case, the Taylors' rejection of Vero's offer was not unreasonable. Although it was not unreasonable for Vero to be separately represented, to bring a separate appeal, and to brief Senior Counsel, those steps could fairly be regarded in part as additional precaution taken because of Vero's wider interests. The appropriate order was therefore that Mr and Mrs Taylor pay Vero's costs of the appeal, excluding the costs of briefing Senior Counsel, and receive a Suitors' Fund Act certificate if otherwise eligible.

Jurisdiction
Australia
Judgment Date
09 February 2005
Procedural Posture
Costs on Appeal / Court of Appeal Judgment No. 2 on Costs, Dealt With on Written Submissions in Chambers
Outcome
Further costs order made; Vero refused indemnity costs.
Legal Topics
['indemnity Costs' 'offer of Compromise' "suitors' Fund Act Certificate" 'separate Appeals and Separate Representation' 'costs of Briefing Senior Counsel']
['costs' 'civil Procedure' 'appeals'] ['indemnity Costs' 'offer of Compromise' "suitors' Fund Act Certificate" 'separate Appeals and Separate Representation' 'costs of Briefing Senior Counsel']

Case Brief

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Procedural Posture

Costs on Appeal / Court of Appeal Judgment No. 2 on Costs, Dealt With on Written Submissions in Chambers

Legal Issues

  1. 1 ['Whether Vero was entitled to indemnity costs following its offer of compromise.' "Whether Mr and Mrs Taylor should pay Vero's costs of the appeal where Vero brought a separate appeal and briefed Senior Counsel despite substantially similar interests to Mr Chapman." "Whether Vero's wider commercial interest in establishing the frustration point should affect the costs order." "Whether a certificate under the Suitors' Fund Act should be granted if otherwise eligible."]

Ratio Decidendi

Vero was not entitled to indemnity costs because, having regard to the difficulty of the case, the Taylors' rejection of Vero's offer was not unreasonable. Although it was not unreasonable for Vero to be separately represented, to bring a separate appeal, and to brief Senior Counsel, those steps could fairly be regarded in part as additional precaution taken because of Vero's wider interests. The appropriate order was therefore that Mr and Mrs Taylor pay Vero's costs of the appeal, excluding the costs of briefing Senior Counsel, and receive a Suitors' Fund Act certificate if otherwise eligible.

Court Disposition

Further costs order made; Vero refused indemnity costs.

Orders

  • ["In addition to the orders made in par.[45] of the judgment dated 13 December 2004, Mr. and Mrs. Taylor to pay Vero's costs of the appeal not extending to briefing Senior Counsel, and to have a certificate under the Suitors' Fund Act if otherwise eligible."]