Moffett v Robin (No 2) [2021] NSWDC 426

District Court New South Wales

Medium Neutral Citation: Moffett v Robin (No 2) [2021] NSWDC 426 Hearing dates: 12 July 2021 (written submissions); 30 July 2021 (written submissions); 2 August 2021 (written submissions); 3 August 2021 (Newcastle); 9 August 2021 (Newcastle at Sydney) Date of orders: 20 August 2021 Decision date: 20 August 2021 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) In relation to the plaintiff's claim against the first defendant, Mr Robin, the plaintiff is to pay on the ordinary basis as agreed or assessed the costs of Mr Robin. These costs include the costs of Mr Robin of the Notice of Motion filed 16 July 2019. (2) In relation to the plaintiff's claim against the second defendant, Active Tree Services Pty Ltd, the plaintiff is to pay the costs of Active Tree Services Pty Ltd on the ordinary basis as agreed or assessed. These costs include the costs of Active Tree Services Pty Ltd of the Notice of Motion filed 16 July 2019. (3) In relation to the First Cross-Claim by Mr Robin against Active Tree Services Pty Ltd and the Fourth Cross-Claim by Active Tree Services Pty Ltd against Mr Robin, Active is to pay the costs of Mr Robin of the First Cross-Claim and the Fourth Cross-Claim on the ordinary basis as agreed or assessed. (4) The second cross-claimant, Active Tree Services Pty Ltd, is to pay the costs on the ordinary basis as agreed or assessed of the cross-defendant to the Second Cross-Claim WFI Insurance Ltd trading as Lumley Insurance of the Second Cross-Claim. Catchwords: COSTS – costs of lengthy hearing where plaintiff was unsuccessful in claim – Calderbank offers and Offers of Compromise – costs relating to three cross-claims Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Employee's Liability Act 1991 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: AB v Keanes (No 2) [2019] NSWDC 765 Bullock v London General Omnibus Co [1907] 1 KB 264 Calderbank v Calderbank [1975] 3 All ER 333 McInnes v Rheem Australia Pty Ltd [2021] NSWCA 89 Moffett v Robin [2021] NSWDC 211 Outerbridge trading as Century 21 Plateau Lifestyle Real Estate v Hall (No 2) [2020] NSWDC 8 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Toyota Finance Australia Ltd v Gardiner (No 2) [2016] NSWCA 181 Zhang v ROC Services (NSW) Pty Ltd [2016] NSWCA 370 Category: Costs Parties: John Moffett (Plaintiff) Apihana Robin (First Defendant; Cross-Claimant to First Cross-Claim; Cross-Defendant to Fourth Cross-Claim) Active Tree Services Pty Ltd (Second Defendant; Cross-Defendant to First Cross-Claim; Cross-Claimant to Second Cross-Claim; Cross-Claimant to Fourth Cross-Claim) WFI Insurance Limited t/as Lumley Insurance (Cross-Defendant to Second Cross-Claim) Representation: Counsel: C Hart (Plaintiff) – via AVL A Combe – via AVL (First Defendant; Cross-Claimant to First Cross-Claim; Cross-Defendant to Fourth Cross-Claim) S McMahon – via AVL (Second Defendant; Cross-Defendant to First Cross-Claim; Cross-Claimant to Second Cross-Claim; Cross-Claimant to Fourth Cross-Claim) M Hamdan – via AVL (Cross-Defendant to Second Cross-Claim)