Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109

Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109

The appellants recovered substantially more than the $50,000 offered in both the July 2005 and June 2006 offers of compromise. The July 2005 offer related to the operative claim for substantially the whole period it was open, and the respondent gave no explanation for rejecting either offer or any exceptional circumstance justifying departure from the prima facie costs consequence. The appellants were therefore entitled to indemnity costs from the applicable dates.

Jurisdiction
Australia
Judgment Date
27 May 2008
Procedural Posture
Consequential Orders Concerning Costs Following Appeal / Notice of Motion to Vary Court of Appeal Orders, Determined on the Papers
Outcome
Appeal allowed in part; earlier judgment for the respondent set aside; judgment entered for the appellants with indemnity costs consequences following unaccepted offers of compromise; Notice of Motion costs awarded to the respondent.
Legal Topics
['offers of Compromise' 'indemnity Costs' 'consequential Orders' 'insurance Policy Reinstatement Costs' 'interest Under Insurance Contracts']
['civil Procedure' 'costs' 'insurance'] ['offers of Compromise' 'indemnity Costs' 'consequential Orders' 'insurance Policy Reinstatement Costs' 'interest Under Insurance Contracts']

Case Brief

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Procedural Posture

Consequential Orders Concerning Costs Following Appeal / Notice of Motion to Vary Court of Appeal Orders, Determined on the Papers

Legal Issues

  1. 1 ['Whether the appellants obtained an order or judgment no less favourable than the terms of their July 2005 and June 2006 offers of compromise.' 'Whether the July 2005 offer related to the claim on which the appellants succeeded after amendment of the summons.' "Whether the respondent established a basis for the Court to refuse the appellants' prima facie entitlement to indemnity costs." "Whether the Court's orders should quantify the extra costs of reinstatement and interest recovered by the appellants."]

Ratio Decidendi

The appellants recovered substantially more than the $50,000 offered in both the July 2005 and June 2006 offers of compromise. The July 2005 offer related to the operative claim for substantially the whole period it was open, and the respondent gave no explanation for rejecting either offer or any exceptional circumstance justifying departure from the prima facie costs consequence. The appellants were therefore entitled to indemnity costs from the applicable dates.

Court Disposition

Appeal allowed in part; earlier judgment for the respondent set aside; judgment entered for the appellants with indemnity costs consequences following unaccepted offers of compromise; Notice of Motion costs awarded to the respondent.

Orders

  • ['Appeal allowed in part.' 'Judgment entered in favour of the respondent on 5 May 2006 set aside.' 'In lieu thereof declare that the appellants are entitled to recover the extra costs of reinstatement pursuant to cl D5 of the Policy and interest on that amount pursuant to s 57 of the Insurance Contracts Act 1984...