Rian Lane v Dive Two Pty Ltd (No 2) [2012] NSWSC 209

Rian Lane v Dive Two Pty Ltd (No 2) [2012] NSWSC 209

Because Horsell's wrongful conduct caused Dive Two to be uninsured and to incur defence costs that responsive insurance would otherwise have borne, Dive Two's costs of defending the plaintiff's claim and of the cross-claim should be dealt with together by a costs order. Liberty also incurred expenses that assisted in containing the plaintiff's damages claim and from which Horsell benefited, so it was appropriate in the Court's costs discretion to order Horsell to pay Liberty's costs of the proceedings. The applications were determined on their merits because Horsell's timely motion made it reasonable for Dive Two and Liberty to expect to argue costs generally.

Jurisdiction
Australia
Judgment Date
12 March 2012
Procedural Posture
Practice and Procedure Costs / Post Judgment Costs Argument Following Reasons and Orders Published on 24 February 2012
Outcome
First cross-defendant ordered to pay the defendants'/cross-claimants' and the second cross-defendant's costs of the proceedings; parties directed to bring in short minutes within seven days.
Legal Topics
['costs of Proceedings' 'cross Claim Costs' 'sanderson Order' 'costs Discretion' 'recovery of Defence Costs Following Breach']
['practice and Procedure' 'costs' 'insurance' 'contract' 'negligence'] ['costs of Proceedings' 'cross Claim Costs' 'sanderson Order' 'costs Discretion' 'recovery of Defence Costs Following Breach']

Case Brief

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Procedural Posture

Practice and Procedure Costs / Post Judgment Costs Argument Following Reasons and Orders Published on 24 February 2012

Legal Issues

  1. 1 ["Whether Horsell should pay Dive Two's and Liberty's costs of the proceedings rather than only their costs of the cross-claim." "Whether the Court should entertain Dive Two's and Liberty's applications for different costs orders despite Horsell's submission that they were outside the seven-day period." "Whether Dive Two's defence costs should be dealt with by way of a costs order rather than only as a head of damages." "Whether Liberty should recover costs incurred in funding aspects of the defence to the plaintiff's quantum claim."]

Ratio Decidendi

Because Horsell's wrongful conduct caused Dive Two to be uninsured and to incur defence costs that responsive insurance would otherwise have borne, Dive Two's costs of defending the plaintiff's claim and of the cross-claim should be dealt with together by a costs order. Liberty also incurred expenses that assisted in containing the plaintiff's damages claim and from which Horsell benefited, so it was appropriate in the Court's costs discretion to order Horsell to pay Liberty's costs of the proceedings. The applications were determined on their merits because Horsell's timely motion made it reasonable for Dive Two and Liberty to expect to argue costs generally.

Court Disposition

First cross-defendant ordered to pay the defendants'/cross-claimants' and the second cross-defendant's costs of the proceedings; parties directed to bring in short minutes within seven days.

Orders

  • ["Order the first cross-defendant to pay the defendants'/ cross-claimants' and the second cross-defendant's costs of the proceedings." 'Direct the parties, within seven days of the date of this order, to bring in short minutes which either stipulate a sum in which judgment for the defendant on the cross-claim is to...