Trajkovski v Commonwealth Insurance Ltd (No. 3) [2020] NSWDC 752

District Court New South Wales

Medium Neutral Citation: Trajkovski v Commonwealth Insurance Ltd (No. 3) [2020] NSWDC 752 Hearing dates: On the papers Date of orders: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 32 Catchwords: COSTS – successful defendant's application to vary costs order – reliance on rules offer and, alternatively, Calderbank offer – whether unreasonable for plaintiff to reject offers Legislation Cited: Uniform Civil Procedure Rules (NSW), rr 20.26, 42.15A Cases Cited: Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd (No 2) [2014] NSWCA 391 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Category: Costs Parties: Mr D Trajkovski (Plaintiff) Commonwealth Insurance Ltd (Defendant) Representation: Counsel: Mr R Perla for the defendant

Solicitors: Plaintiff was unrepresented on the application Turks Legal for the defendant File Number(s): 2019/64733 Publication restriction: Nil

Judgment

BACKGROUND 1. I delivered reasons for giving judgment for the defendant in this matter on 13 November 2020 when ordering, relevantly, that the plaintiff pay the defendant's costs as agreed or assessed. I ordered that there by liberty to apply on 14 days' notice for any application for a variation of that costs order. 2. By a Notice of Motion filed on 27 November 2020, the defendant (the 'applicant') applied for a variation of that costs order, seeking an order that the plaintiff (the 'respondent') pay its costs on an indemnity basis on and from 4 June 2019. An affidavit in support of that application was deposed by Ms Jane Yoo, a Senior Associate of the firm of solicitors representing the applicant. At paragraphs 7 and 8 of Ms Yoo's affidavit, submissions were made in support of an application for indemnity costs in relation to a Calderbank letter, which was one of the two bases upon which the application for variation of the costs order was made.