Wood v Insurance Australia Group Limited trading as NRMA Insurance (No 2) [2022] NSWSC 1729

Wood v Insurance Australia Group Limited trading as NRMA Insurance (No 2) [2022] NSWSC 1729

The plaintiff's proposed consent resolution could not of itself resolve the s 69 judicial review proceedings and involved no substantial compromise, so NRMA's refusal to accept it was not unreasonable and did not amount to relevant delinquency. NRMA's failure to admit what materials were before the delegate was not unreasonable in the circumstances, NRMA did not make or cause the errors that led to the delegate's decision being set aside, and its opposition ended when it filed a submitting appearance. No special or unusual feature justified indemnity costs or variation of the existing costs order; costs of the unsuccessful motion should follow the event.

Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Application by Notice of Motion to Vary a Costs Order in Judicial Review Proceedings / On the Papers; Submissions Closed 7 November 2022; Decision on Notice of Motion
Outcome
Service on the second defendant was dispensed with; the notice of motion was otherwise dismissed; the plaintiff was ordered to pay the first defendant's costs of the notice of motion.
Legal Topics
['indemnity Costs' 'variation of Costs Order' 'submitting Appearance' 'calderbank Offer' 'costs Following the Event']
['civil Procedure' 'costs' 'judicial Review'] ['indemnity Costs' 'variation of Costs Order' 'submitting Appearance' 'calderbank Offer' 'costs Following the Event']

Case Brief

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Procedural Posture

Application by Notice of Motion to Vary a Costs Order in Judicial Review Proceedings / On the Papers; Submissions Closed 7 November 2022; Decision on Notice of Motion

Legal Issues

  1. 1 ['Whether service of the notice of motion on the second defendant should be dispensed with.' "Whether the costs order made on 6 October 2022 should be varied so that the first defendant pays the plaintiff's costs on an ordinary basis up to and including 11 August 2022 and thereafter on an indemnity basis." "Whether the first defendant's refusal to accept the plaintiff's 11 August 2022 offer or its conduct at the hearing amounted to relevant delinquency or unreasonable conduct justifying indemnity costs."]

Ratio Decidendi

The plaintiff's proposed consent resolution could not of itself resolve the s 69 judicial review proceedings and involved no substantial compromise, so NRMA's refusal to accept it was not unreasonable and did not amount to relevant delinquency. NRMA's failure to admit what materials were before the delegate was not unreasonable in the circumstances, NRMA did not make or cause the errors that led to the delegate's decision being set aside, and its opposition ended when it filed a submitting appearance. No special or unusual feature justified indemnity costs or variation of the existing costs order; costs of the unsuccessful motion should follow the event.

Court Disposition

Service on the second defendant was dispensed with; the notice of motion was otherwise dismissed; the plaintiff was ordered to pay the first defendant's costs of the notice of motion.

Orders

  • ['The requirement to serve the notice of motion filed on 12 October 2022 on the second defendant is dispensed with.' 'Otherwise, the notice of motion filed on 12 October 2022 is dismissed.' "The plaintiff is to pay the first defendant's costs of the notice of motion."]