The Owners – Strata Plan No 55682 v W. R. Berkley Insurance (Europe), PLC & Ors (No.2) [2021] NSWDC 14

The Owners – Strata Plan No 55682 v W. R. Berkley Insurance (Europe), PLC & Ors (No.2) [2021] NSWDC 14

The Court held that a Sanderson order was appropriate because it was reasonable for the plaintiff to sue the insurer and the unsuccessful brokers and licensee maintained a position that disclosure had been made to the agent, which induced or contributed to the claim against the insurer. The plaintiff had to pay Ms Honeychurch's costs because the plaintiff chose to sue her without facts sufficient to sustain a personal duty of care and there was no obvious necessity to join her. Judgment was entered for the cross-defendant because the cross-claim was brought and defended notwithstanding its contingent character, and the cross-claimant had to pay the cross-defendant's costs because the...

Jurisdiction
Australia
Judgment Date
10 February 2021
Procedural Posture
Civil Costs Decision / On the Papers Following Reasons for Judgment Delivered on 17 December 2020
Outcome
Judgment for the plaintiff against the second, third and fifth defendants; judgment for the first and fourth defendants against the plaintiff; judgment for the cross-defendant on the cross-claim; ordinary costs orders made; application for partial indemnity costs refused.
Legal Topics
['sanderson Order' 'indemnity Costs' 'cross Claim Costs' 'calderbank Offer' 'limitation Defence' 'interest on Damages']
['civil Procedure' 'costs' 'insurance' 'professional Negligence'] ['sanderson Order' 'indemnity Costs' 'cross Claim Costs' 'calderbank Offer' 'limitation Defence' 'interest on Damages']

Case Brief

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Procedural Posture

Civil Costs Decision / On the Papers Following Reasons for Judgment Delivered on 17 December 2020

Legal Issues

  1. 1 ["Whether the second, third and fifth defendants should pay the first defendant's costs by way of a Sanderson order." "Whether the plaintiff should pay the fourth defendant's costs after the fourth defendant succeeded in her defence." 'Whether judgment should be entered for the cross-defendant on the cross-claim despite the cross-claim being described as contingent.' "Whether the cross-claimant or the second, third and fifth defendants should pay the cross-defendant's costs of the cross-claim." 'Whether the cross-defendant should receive costs partly on an indemnity basis because the cross-claimant did not accept a Calderbank offer.' "What interest should be added to the plaintiff's damages award."]

Ratio Decidendi

The Court held that a Sanderson order was appropriate because it was reasonable for the plaintiff to sue the insurer and the unsuccessful brokers and licensee maintained a position that disclosure had been made to the agent, which induced or contributed to the claim against the insurer. The plaintiff had to pay Ms Honeychurch's costs because the plaintiff chose to sue her without facts sufficient to sustain a personal duty of care and there was no obvious necessity to join her. Judgment was entered for the cross-defendant because the cross-claim was brought and defended notwithstanding its contingent character, and the cross-claimant had to pay the cross-defendant's costs because the...

Court Disposition

Judgment for the plaintiff against the second, third and fifth defendants; judgment for the first and fourth defendants against the plaintiff; judgment for the cross-defendant on the cross-claim; ordinary costs orders made; application for partial indemnity costs refused.

Orders

  • ['Subject to order (8), Judgment and verdict for the plaintiff against the second, third and fifth defendants for the sum of $739,393.95.' 'Judgment for the first defendant against the plaintiff.' "The second, third and fifth defendants are to pay the first defendant's costs of its defence of the proceeding, as...