Apthorpe v QBE Insurance (Australia) Limited & Ors (No 2) [2019] NSWDC 390

Apthorpe v QBE Insurance (Australia) Limited & Ors (No 2) [2019] NSWDC 390

The third defendant acted unreasonably and in breach of procedural obligations both by maintaining an untenable limitation defence without proper particulars and by refusing to participate meaningfully in settlement negotiations, causing unnecessary costs to the plaintiff and co-defendants. Indemnity costs are appropriate for the plaintiff's costs relating to the limitation issue and for the first and second defendants' costs after 21 December 2018; otherwise, costs follow proportionate liability findings to that date.

Parties
Plaintiff: Kenneth Charles Apthorpe; First Defendant: QBE Insurance (Australia) Limited; Second Defendant: HTE (Aust) Pty Limited; Third Defendant: Christopher Wright; Fourth Defendant: Burtwin Pty Ltd
Jurisdiction
Australia
Judgment Date
09 August 2019
Procedural Posture
Civil Personal Injury Costs Determination / Costs Determination Post Judgment
Outcome
Costs orders made as set out in paragraph 73
Legal Topics
Indemnity Costs, Proportionate Liability, Limitation Defence, Settlement Negotiations
Costs Personal Injury Civil Procedure Indemnity Costs Proportionate Liability Limitation Defence Settlement Negotiations

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Parties

Kenneth Charles Apthorpe

Plaintiff

QBE Insurance (Australia) Limited

First Defendant

HTE (Aust) Pty Limited

Second Defendant

Christopher Wright

Third Defendant

Burtwin Pty Ltd

Fourth Defendant

Procedural Posture

Civil Personal Injury Costs Determination / Costs Determination Post Judgment

Legal Issues

  1. 1 Whether indemnity costs should be awarded against the third defendant regarding the abandoned limitation defence and conduct during settlement
  2. 2 The appropriate proportions in which the defendants should pay the plaintiff's costs and costs between defendants

Ratio Decidendi

The third defendant acted unreasonably and in breach of procedural obligations both by maintaining an untenable limitation defence without proper particulars and by refusing to participate meaningfully in settlement negotiations, causing unnecessary costs to the plaintiff and co-defendants. Indemnity costs are appropriate for the plaintiff's costs relating to the limitation issue and for the first and second defendants' costs after 21 December 2018; otherwise, costs follow proportionate liability findings to that date.

Court Disposition

Costs orders made as set out in paragraph 73

Orders

  • As between the plaintiff and the fourth defendant, no order as to costs with intent each pay own costs
  • Third defendant to pay the plaintiff's costs of and incidental to the limitation defence on the indemnity basis