Allianz Australia Insurance Limited v Rawson Homes Pty Ltd (No 2) [2021] NSWCA 334

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Allianz Australia Insurance Limited v Rawson Homes Pty Ltd (No 2) [2021] NSWCA 334 Hearing dates: On the papers Decision date: 20 December 2021 Before: Meagher JA at [1]; Leeming JA at [2]; White JA at [3] Decision: (1) Refuse the appellant's application that its costs of the appeal be payable on the indemnity basis; (2) Order that the appellant pay 85% of the respondent's costs of the proceedings below; (3) Vary order (4) made on 20 September 2021 to provide that the appellant's costs of the appeal payable by the respondent not include the costs of the submissions made pursuant to order (6) made on 20 September 2021. (4) Order that the appellant pay the respondent's costs of the application referred to in order (1) and of the submissions in relation to the orders that should be made as to the costs of the proceedings below. Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where offer of compromise not served until after office hours on Friday before hearing and open for acceptance only until an hour before commencement of hearing COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Costs of proceedings below — Where appellant successful on appeal — Where issue on appeal "separable" and "dominant" — Where respondent substantially successful on factual issues below — Where costs of issues on which respondent succeeded below would vastly have exceeded costs on issues on which it failed Legislation Cited: Civil Procedure Act 2005 (NSW) Insurance Contracts Act 1984 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allianz Australia Insurance Limited v Rawson Homes Pty Ltd [2021] NSWCA 224 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Bowen Investments v Tabcorp Holdings (No 2) [2008] FCAFC 107 Interchase Corporation Limited (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 QDR James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 McDermott v Robinson Helicopter Co (No 2) [2015] 1 QDR 295 Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98 Category: Costs Parties: Allianz Australia Insurance Limited (Appellant) Rawson Homes Pty Ltd (Respondent) Representation: Counsel: T M Faulkner SC with C P O'Neill (Appellant) M R Elliott SC with P Mann (Respondent)