Diamond World Jewellers Pty Ltd v Catlin Australia Pty Ltd (No 2) [2021] NSWSC 1540

Diamond World Jewellers Pty Ltd v Catlin Australia Pty Ltd (No 2) [2021] NSWSC 1540

The insurer was unreasonable in refusing to make any payment under the policy after its October 2019 decision because the material available to it substantiated the cost of the damaged fittings and stolen jewellery, even though refusal of the damaged jewellery claim was not unreasonable. Interest was therefore payable from 4 October 2019. The pre-proceedings Calderbank offer was not unreasonably refused, but the later offer of compromise was a real compromise for less than the plaintiff recovered, and no basis was shown to displace the costs consequences under UCPR r 42.14; indemnity costs therefore followed from the day after the offer was made.

Jurisdiction
Australia
Judgment Date
30 November 2021
Procedural Posture
Insurance Claim; Costs / Final Orders on Damages, Interest and Costs Following Principal Judgment
Outcome
Judgment for the plaintiff against the defendant, with costs to the plaintiff including indemnity costs after 18 August 2021.
Legal Topics
['insurance Claim' 'reliability of Records' 'interest Under Insurance Contract' 'indemnity Costs' 'calderbank Offer' 'offer of Compromise']
['insurance' 'civil Procedure' 'costs'] ['insurance Claim' 'reliability of Records' 'interest Under Insurance Contract' 'indemnity Costs' 'calderbank Offer' 'offer of Compromise']

Case Brief

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Procedural Posture

Insurance Claim; Costs / Final Orders on Damages, Interest and Costs Following Principal Judgment

Legal Issues

  1. 1 ['Whether Diamond World had established the amount payable for stolen stock and damaged fittings under the policy.' 'From what date interest was payable under s 57 of the Insurance Contracts Act 1984 (Cth).' 'Whether the plaintiff should receive indemnity costs based on its Calderbank offer or its offer of compromise under the Uniform Civil Procedure Rules 2005 (NSW).']

Ratio Decidendi

The insurer was unreasonable in refusing to make any payment under the policy after its October 2019 decision because the material available to it substantiated the cost of the damaged fittings and stolen jewellery, even though refusal of the damaged jewellery claim was not unreasonable. Interest was therefore payable from 4 October 2019. The pre-proceedings Calderbank offer was not unreasonably refused, but the later offer of compromise was a real compromise for less than the plaintiff recovered, and no basis was shown to displace the costs consequences under UCPR r 42.14; indemnity costs therefore followed from the day after the offer was made.

Court Disposition

Judgment for the plaintiff against the defendant, with costs to the plaintiff including indemnity costs after 18 August 2021.

Orders

  • ['Judgment for the plaintiff against the defendant in the sum of $1,431,759.' "The defendant to pay the plaintiff's costs of and incidental to the proceedings, as agreed or assessed up to and including 18 August 2021 and thereafter, on an indemnity basis."]