Zurich Australian Insurance Limited v CIMIC Group Limited & Ors (No 2) [2024] NSWCA 276

Zurich Australian Insurance Limited v CIMIC Group Limited & Ors (No 2) [2024] NSWCA 276

Given the multiplicity and separability of issues, costs are to be apportioned on an issue-by-issue basis in line with the Agreed List of Issues, as this reflects the conduct of the litigation and properly allocates costs to parties commensurate with their success or failure on discrete issues.

Parties
Appellant: Zurich Australian Insurance Limited; First Respondent / First Cross Appellant: CIMIC Group Limited; Second Respondent / Third Cross Respondent: AIG Australia Limited; Third Respondent / Second Cross Respondent: Chubb Insurance Australia Limited; Fourth Respondent: Catlin Syndicate Limited; Fifth Respondent / Fourth Cross Respondent: Catlin Australia Pty Limited; Sixth Respondent / Sixth Cross Respondent: Liberty Mutual Insurance Company; Seventh Respondent / Appellant / First Cross Respondent: Berkley Insurance Company; Eighth Respondent / Seventh Cross Respondent: Swiss Re International SE; Ninth Respondent / First Appellant / Ninth Cross Respondent: Arch Underwriting at Lloyd's Limited on Behalf of Syndicate 2012; Tenth Respondent / Second Appellant / Tenth Cross Respondent: Dual Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
29 November 2024
Procedural Posture
Appeal / Costs Determination After Appeal Judgment and Orders
Outcome
Issues-based costs orders made in accordance with the Agreed List of Issues; applications for indemnity costs refused; remainder of costs to lie where they fall.
Legal Topics
Costs, Appeals, Insurance Law
Civil Procedure Costs Appeals Insurance Law

Case Brief

Summary, issues, holding and outcome

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Parties

Zurich Australian Insurance Limited

Appellant

CIMIC Group Limited

First Respondent / First Cross Appellant

AIG Australia Limited

Second Respondent / Third Cross Respondent

Chubb Insurance Australia Limited

Third Respondent / Second Cross Respondent

Catlin Syndicate Limited

Fourth Respondent

Catlin Australia Pty Limited

Fifth Respondent / Fourth Cross Respondent

Liberty Mutual Insurance Company

Sixth Respondent / Sixth Cross Respondent

Berkley Insurance Company

Seventh Respondent / Appellant / First Cross Respondent

Swiss Re International SE

Eighth Respondent / Seventh Cross Respondent

Arch Underwriting at Lloyd's Limited on Behalf of Syndicate 2012

Ninth Respondent / First Appellant / Ninth Cross Respondent

Dual Australia Pty Ltd

Tenth Respondent / Second Appellant / Tenth Cross Respondent

Procedural Posture

Appeal / Costs Determination After Appeal Judgment and Orders

Legal Issues

  1. 1 Should costs be apportioned on an issues basis or event basis?
  2. 2 Which party should bear the costs of each discrete issue identified in the appeals?
  3. 3 Are any parties entitled to indemnity costs arising from offers of compromise or Calderbank offers?

Ratio Decidendi

Given the multiplicity and separability of issues, costs are to be apportioned on an issue-by-issue basis in line with the Agreed List of Issues, as this reflects the conduct of the litigation and properly allocates costs to parties commensurate with their success or failure on discrete issues.

Court Disposition

Issues-based costs orders made in accordance with the Agreed List of Issues; applications for indemnity costs refused; remainder of costs to lie where they fall.

Orders

  • CIMIC to pay the costs of AIG, Chubb, Catlin and Liberty for Issues 6, 7 and 10.
  • CIMIC to pay 50% of the costs of AIG, Chubb, Catlin and Liberty for Issue 8.