The Owners – Strata Plan No 55682 v W. R. Berkley Insurance (Europe), PLC & Ors (No.3) [2021] NSWDC 15

The Owners – Strata Plan No 55682 v W. R. Berkley Insurance (Europe), PLC & Ors (No.3) [2021] NSWDC 15

No Sanderson or further costs order was warranted because, although the cross-claim was not so hopeless as to warrant indemnity costs, the limitations issues were a major obstacle and the Insurer unreasonably treated the Agent's limitations argument with unjustified disdain; the prospective cross-claim was likely to fail regardless of the merits of the plaintiff's claim against the Insurer or the brokers' and licensee's contribution to the Insurer's decision to claim against the Agent.

Jurisdiction
Australia
Judgment Date
12 February 2021
Procedural Posture
Civil Costs Application / On the Papers; Further Submissions on Costs After Dispositive Orders
Outcome
No further order was made; the Insurer's further submission that the brokers and licensee pay its costs of the cross-claim was not accepted.
Legal Topics
['costs of Cross Claim' 'sanderson Order' 'reasonableness of Joining Third Party' 'limitations Defence']
['costs' 'civil Procedure'] ['costs of Cross Claim' 'sanderson Order' 'reasonableness of Joining Third Party' 'limitations Defence']

Case Brief

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Procedural Posture

Civil Costs Application / On the Papers; Further Submissions on Costs After Dispositive Orders

Legal Issues

  1. 1 ["Whether the brokers and licensee should pay the Insurer's costs of the cross-claim." 'Whether a Sanderson order should be made in favour of the Insurer as cross-claimant against unsuccessful defendants.' 'Whether it was reasonable for the Insurer to continue pursuing the cross-claim in light of limitations issues.']

Ratio Decidendi

No Sanderson or further costs order was warranted because, although the cross-claim was not so hopeless as to warrant indemnity costs, the limitations issues were a major obstacle and the Insurer unreasonably treated the Agent's limitations argument with unjustified disdain; the prospective cross-claim was likely to fail regardless of the merits of the plaintiff's claim against the Insurer or the brokers' and licensee's contribution to the Insurer's decision to claim against the Agent.

Court Disposition

No further order was made; the Insurer's further submission that the brokers and licensee pay its costs of the cross-claim was not accepted.

Orders

  • ['It is unnecessary to make any further order.']