Averkin v Insurance Australia Ltd (No 2) [2016] NSWCA 150

Averkin v Insurance Australia Ltd (No 2) [2016] NSWCA 150

Pre-judgment interest is included in the sum for judgment under r 42.35, so the threshold was exceeded and default costs rules apply. Mr Averkin is entitled to costs on an ordinary basis to the date of his valid offer of compromise, and thereafter on an indemnity basis. The same approach applies to costs of the appeal, given a further valid offer of compromise.

Parties
Appellant: Mr Michael Averkin; Respondent: Insurance Australia Ltd
Jurisdiction
Australia
Judgment Date
30 June 2016
Procedural Posture
Civil Appeal / Post Appeal Judgment and Costs Determination
Outcome
Appeal allowed; orders made for judgment and costs in favour of Mr Averkin.
Legal Topics
Costs, Offers of Compromise, Jurisdictional Thresholds, Pre Judgment Interest
Civil Procedure Costs Offers of Compromise Jurisdictional Thresholds Pre Judgment Interest

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Parties

Mr Michael Averkin

Appellant

Insurance Australia Ltd

Respondent

Procedural Posture

Civil Appeal / Post Appeal Judgment and Costs Determination

Legal Issues

  1. 1 Whether pre-judgment interest is included in calculation for jurisdictional threshold under r 42.35
  2. 2 Entitlement to special costs orders due to offers of compromise
  3. 3 Appropriate allocation of costs at first instance and on appeal

Ratio Decidendi

Pre-judgment interest is included in the sum for judgment under r 42.35, so the threshold was exceeded and default costs rules apply. Mr Averkin is entitled to costs on an ordinary basis to the date of his valid offer of compromise, and thereafter on an indemnity basis. The same approach applies to costs of the appeal, given a further valid offer of compromise.

Court Disposition

Appeal allowed; orders made for judgment and costs in favour of Mr Averkin.

Orders

  • Judgment for Mr Averkin in the amount of $42,239.70, taking effect as of 24 April 2015.
  • Insurer to pay Mr Averkin's costs at first instance (assessed on ordinary basis until 21 May 2014, and on indemnity basis from 22 May 2014).