Thornton v Wollondilly Mobile Engineering (No 2) [2012] NSWSC 742

Thornton v Wollondilly Mobile Engineering (No 2) [2012] NSWSC 742

The Court found that the right to contribution under s 5 extended to costs as well as damages, and the property damage claim did not substantially alter the proportionate allocation rule. Penrose’s resistance to the plaintiff’s claim was not unreasonable, and Wollondilly was not deprived of procedural options such as Calderbank offers. Therefore, the usual approach to apportionment applied.

Jurisdiction
Australia
Judgment Date
22 June 2012
Procedural Posture
Civil / Post Judgment Costs Determination
Outcome
Judgment for the plaintiff against the second defendant and for the second defendant/cross-claimant against the cross-defendant; orders for costs and apportionment.
Legal Topics
['costs' 'contribution' 'indemnity' 'party/party Costs' 'apportionment']
['practice and Procedure'] ['costs' 'contribution' 'indemnity' 'party/party Costs' 'apportionment']

Case Brief

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Procedural Posture

Civil / Post Judgment Costs Determination

Legal Issues

  1. 1 ["Whether cross-defendant should contribute to plaintiff's costs in apportionment with damages" 'Appropriateness of orthodox practice in apportioning costs among defendants' 'Right to contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 extends to both damages and costs']

Ratio Decidendi

The Court found that the right to contribution under s 5 extended to costs as well as damages, and the property damage claim did not substantially alter the proportionate allocation rule. Penrose’s resistance to the plaintiff’s claim was not unreasonable, and Wollondilly was not deprived of procedural options such as Calderbank offers. Therefore, the usual approach to apportionment applied.

Court Disposition

Judgment for the plaintiff against the second defendant and for the second defendant/cross-claimant against the cross-defendant; orders for costs and apportionment.

Orders

  • ['Judgment for the plaintiff against the second defendant in the sum of $136,363.' 'Judgment for the second defendant/cross-claimant against the cross-defendant in the sum of $136,899.' "Order that the second defendant pay the plaintiff's costs of the proceedings." 'Order that the cross-defendant pay 60% of the...