Kabic v Workers Compensation Nominal Insurer (No. 5) [2018] NSWSC 1070

Kabic v Workers Compensation Nominal Insurer (No. 5) [2018] NSWSC 1070

The plaintiff was required to pay the second defendant's costs because Deicorp completely defeated the plaintiff's claim and shared representation did not justify denying all later costs. Calcono was required to pay the plaintiff's costs because the plaintiff succeeded against Calcono on liability and recovered a significant sum, despite recovering less than claimed. Calcono was also required to pay the first defendant's costs because it was reasonable for the plaintiff to sue his employer and Calcono, in a practical sense, engaged against the first defendant and submitted that the first defendant rather than Calcono was liable.

Jurisdiction
Australia
Judgment Date
11 July 2018
Procedural Posture
Costs Following Personal Injury Claim and Cross Claims / Determination of Costs and Ancillary Orders After Substantive Judgment
Outcome
Costs and ancillary orders made; judgment entered for the first defendant against the third defendant on the third cross-claim, cross-claims otherwise dismissed, and costs ordered primarily against the third defendant with the plaintiff to pay the second defendant's costs.
Legal Topics
['costs Following the Event' 'shared Legal Representation and Costs' 'cross Claims' 'workers Compensation Reimbursement' 'interest on Judgment']
['costs' 'personal Injury' 'workers Compensation'] ['costs Following the Event' 'shared Legal Representation and Costs' 'cross Claims' 'workers Compensation Reimbursement' 'interest on Judgment']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Following Personal Injury Claim and Cross Claims / Determination of Costs and Ancillary Orders After Substantive Judgment

Legal Issues

  1. 1 ['Whether the plaintiff should pay the costs of the successful second defendant after the second defendant began sharing representation with the unsuccessful third defendant.' "Whether the unsuccessful third defendant should pay the plaintiff's costs despite the plaintiff recovering substantially less than the amount claimed at the end of the hearing." "Whether the unsuccessful third defendant should pay the successful first defendant's costs for which the plaintiff would otherwise be liable." 'What ancillary orders should be made concerning the workers compensation recovery, interest and cross-claims.']

Ratio Decidendi

The plaintiff was required to pay the second defendant's costs because Deicorp completely defeated the plaintiff's claim and shared representation did not justify denying all later costs. Calcono was required to pay the plaintiff's costs because the plaintiff succeeded against Calcono on liability and recovered a significant sum, despite recovering less than claimed. Calcono was also required to pay the first defendant's costs because it was reasonable for the plaintiff to sue his employer and Calcono, in a practical sense, engaged against the first defendant and submitted that the first defendant rather than Calcono was liable.

Court Disposition

Costs and ancillary orders made; judgment entered for the first defendant against the third defendant on the third cross-claim, cross-claims otherwise dismissed, and costs ordered primarily against the third defendant with the plaintiff to pay the second defendant's costs.

Orders

  • ['Judgment for the first defendant against the third defendant on the third cross claim filed 25 August 2014 pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in the amount of $452,395.18.' "In relation to the judgment entered in favour of the plaintiff on 16 March 2018 in the sum of $452,395.18...