Dargham v Kovacevic (No 2) [2011] NSWSC 651

Dargham v Kovacevic (No 2) [2011] NSWSC 651

Applying s 98(1) Civil Procedure Act 2005 and UCPR 42.1, the court ordered costs to follow the event on the ordinary basis except where a different order was warranted. The first defendant, having succeeded, was entitled to ordinary costs from the plaintiff, and the plaintiff's indemnity costs application was rejected because the first defendant had pleaded his position and the plaintiff continued the claim. A Bullock order against the third defendant was appropriate because the relationship between the first and third defendants and the lack of clarification by either made it reasonable and essential to join both. The plaintiff and third cross defendant were entitled to ordinary costs...

Jurisdiction
Australia
Judgment Date
30 June 2011
Procedural Posture
Common Law Personal Injury Costs Applications / On Written Submissions Following Substantive Proceedings, With Costs Reserved
Outcome
Costs orders made following the substantive personal injury proceedings.
Legal Topics
['costs Following the Event' 'ordinary Basis Costs' 'indemnity Costs' 'bullock Order' 'offer of Compromise' 'cross Claims' 'costs Thrown Away']
['common Law' 'personal Injury' 'costs' 'civil Procedure' 'insurance Indemnity'] ['costs Following the Event' 'ordinary Basis Costs' 'indemnity Costs' 'bullock Order' 'offer of Compromise' 'cross Claims' 'costs Thrown Away']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Common Law Personal Injury Costs Applications / On Written Submissions Following Substantive Proceedings, With Costs Reserved

Legal Issues

  1. 1 ["Whether the successful first defendant should receive ordinary costs from the plaintiff or instead pay the plaintiff's costs on an indemnity basis." "Whether the plaintiff should receive a Bullock order against the third defendant for the plaintiff's liability to pay the first defendant's costs." 'Whether the successful plaintiff should receive ordinary or indemnity costs against the third defendant.' 'Whether the successful third cross defendant should receive ordinary or indemnity costs against the third defendant by reason of an offer of compromise.' "Whether Mecon, as first cross defendant, should pay the third defendant's costs and whether any exclusions or indemnity costs orders should be made." 'What costs order should be made on the second cross claim.' "How costs affected by the plaintiff solicitor's incorrect diarising of the hearing date should be treated."]

Ratio Decidendi

Applying s 98(1) Civil Procedure Act 2005 and UCPR 42.1, the court ordered costs to follow the event on the ordinary basis except where a different order was warranted. The first defendant, having succeeded, was entitled to ordinary costs from the plaintiff, and the plaintiff's indemnity costs application was rejected because the first defendant had pleaded his position and the plaintiff continued the claim. A Bullock order against the third defendant was appropriate because the relationship between the first and third defendants and the lack of clarification by either made it reasonable and essential to join both. The plaintiff and third cross defendant were entitled to ordinary costs...

Court Disposition

Costs orders made following the substantive personal injury proceedings.

Orders

  • ["The plaintiff is to pay the first defendant's costs on the ordinary basis." 'I make a Bullock order in respect of such costs against the third defendant.' "The third defendant is to pay the plaintiff's costs on the ordinary basis. Such costs do not include the plaintiff's costs identified in para [35] hereof."...