Insurance Australia Ltd t/as NRMA Insurance v Yu (No 2) [2019] NSWSC 505

Insurance Australia Ltd t/as NRMA Insurance v Yu (No 2) [2019] NSWSC 505

The rules offer did not comply with r 20.26 because it failed to specify proposed orders for disposal of the judicial review claim, but the separate Calderbank offer was a genuine compromise. The offer to accept $110,000, against a total certified liability of $148,694.05, compromised Ms Yu's entitlements and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 May 2019
Procedural Posture
Costs Application in Proceedings for Judicial Review / Application for Indemnity Costs After Summons Dismissed With Costs
Outcome
Plaintiff ordered to pay the first defendant's costs on the ordinary basis up to and including 1 February 2018 and on an indemnity basis after 1 February 2018.
Legal Topics
['offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'judicial Review of CARS Assessment' 'reasonableness of Refusing Settlement Offer']
['civil Procedure' 'costs' 'administrative Law' 'motor Accidents Compensation'] ['offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'judicial Review of CARS Assessment' 'reasonableness of Refusing Settlement Offer']

Source-derived case record

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Procedural Posture

Costs Application in Proceedings for Judicial Review / Application for Indemnity Costs After Summons Dismissed With Costs

Legal Issues

  1. 1 ['Whether the offer of compromise complied with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) and engaged r 42.15.' 'Whether the Calderbank offer was a genuine offer of compromise.' 'Whether it was unreasonable for the plaintiff not to accept or seek clarification of the Calderbank offer.' 'Whether the first defendant should receive indemnity costs from the date of the Calderbank offer.']

Ratio Decidendi

The rules offer did not comply with r 20.26 because it failed to specify proposed orders for disposal of the judicial review claim, but the separate Calderbank offer was a genuine compromise. The offer to accept $110,000, against a total certified liability of $148,694.05, compromised Ms Yu's entitlements and offered certainty. Given the amounts involved, the strength of Ms Yu's successful arguments, and the insurer's ability to seek clarification if uncertain, it was unreasonable not to accept or respond to the offer. Indemnity costs were therefore warranted from the date of the offer.

Court Disposition

Plaintiff ordered to pay the first defendant's costs on the ordinary basis up to and including 1 February 2018 and on an indemnity basis after 1 February 2018.

Orders

  • ["That the plaintiff pay the first defendant's costs on the ordinary basis up to and including 1 February 2018 and on an indemnity basis after 1 February 2018."]