Ace-Semi Trailer Sales Pty Ltd v Zurich Australia Insurance Ltd [2009] NSWCA 381

Ace-Semi Trailer Sales Pty Ltd v Zurich Australia Insurance Ltd [2009] NSWCA 381

The primary judge did not err in ordering Ace to pay Zurich's costs of the cross-claim because the cross-claim was not shown to be unnecessary and served a proper purpose in obtaining contribution. The primary judge did not err in refusing indemnity costs to Ace in the indemnity proceedings because Ace did not obtain an order or judgment on that claim no less favourable than its Offer of Compromise and Zurich's rejection of the offer was not unreasonable. By majority, the order requiring Ace to indemnify Zurich for 25 percent of the worker's costs was erroneous because Ace's participation was referable to defending the cross-claim and there was no sufficient basis, either as a general...

Jurisdiction
Australia
Judgment Date
09 December 2009
Procedural Posture
Application for Leave to Appeal Concerning Costs Orders / Court of Appeal From Orders of Hoeben J in the Supreme Court of New South Wales, Common Law Division
Outcome
Leave to appeal granted on the three challenged costs orders; appeal allowed only as to the order requiring Ace to indemnify Zurich for 25 percent of the worker's costs; otherwise dismissed.
Legal Topics
['s 151 Z Workers Compensation Act 1987 Contribution and Indemnity' 'costs of Cross Claim by Third Party Against Employer' 'offer of Compromise and Indemnity Costs' 'joint Tortfeasor Contribution' 'work Injury Damages Costs']
['costs' 'workers Compensation' 'torts' 'civil Procedure'] ['s 151 Z Workers Compensation Act 1987 Contribution and Indemnity' 'costs of Cross Claim by Third Party Against Employer' 'offer of Compromise and Indemnity Costs' 'joint Tortfeasor Contribution' 'work Injury Damages Costs']

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Procedural Posture

Application for Leave to Appeal Concerning Costs Orders / Court of Appeal From Orders of Hoeben J in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ["Whether Ace should pay Zurich's costs of Zurich's cross-claim against Ace for joint tortfeasor contribution." "Whether Ace should indemnify Zurich for 25 percent of the worker's costs payable by Zurich." "Whether Zurich's rejection of Ace's Offer of Compromise in the indemnity proceedings required Zurich to pay Ace's costs on an indemnity basis from 20 May 2008."]

Ratio Decidendi

The primary judge did not err in ordering Ace to pay Zurich's costs of the cross-claim because the cross-claim was not shown to be unnecessary and served a proper purpose in obtaining contribution. The primary judge did not err in refusing indemnity costs to Ace in the indemnity proceedings because Ace did not obtain an order or judgment on that claim no less favourable than its Offer of Compromise and Zurich's rejection of the offer was not unreasonable. By majority, the order requiring Ace to indemnify Zurich for 25 percent of the worker's costs was erroneous because Ace's participation was referable to defending the cross-claim and there was no sufficient basis, either as a general...

Court Disposition

Leave to appeal granted on the three challenged costs orders; appeal allowed only as to the order requiring Ace to indemnify Zurich for 25 percent of the worker's costs; otherwise dismissed.

Orders

  • ['Grant the applicant leave to appeal with respect to: (a) order (4) in proceedings 20282/2006; (b) order (6) in proceedings 20282/2006; and (c) order (2) in proceedings 20214/2007.' 'In relation to order (4) referred to in par (a) above, set aside the order made by the trial judge.' 'Otherwise dismiss the appeal.'...