Cutting Edge Services Pty Ltd v Raymond & Therese Penfold; Raymond & Therese Penfold v The Hollard Insurance Company Pty Ltd (No 2) [2022] NSWSC 516

Supreme Court New South Wales

Medium Neutral Citation: Cutting Edge Services Pty Ltd v Raymond & Therese Penfold; Raymond & Therese Penfold v The Hollard Insurance Company Pty Ltd (No 2) [2022] NSWSC 516 Hearing dates: 11 February 2022 and on the papers Date of orders: 2 May 2022 Decision date: 02 May 2022 Jurisdiction: Common Law Before: N Adams J Decision: (1) The defendants are to pay the plaintiff's costs on the ordinary basis from 1 February 2018 until 2 July 2020. (2) The plaintiff is to pay the defendants' costs from 3 July 2020 on an indemnity basis. (3) The defendants are to pay the cross-defendant's costs on the ordinary basis from 1 May 2018 until 29 November 2019 and on an indemnity basis thereafter. (4) Interest is payable on the damages claim from 18 December 2016 until 17 August 2020 but not thereafter. Catchwords: COSTS – party/party – general rule that costs follow the event – where all parties submitted that the general rule be departed from – plaintiff successful in tort claim against defendants – defendants unsuccessful in cross-claim against insurer – whether plaintiff should have commenced proceedings in inferior court – proceedings factually complex – whether Calderbank offers and offers of compromise were reasonably rejected – indemnity costs – no sufficient nexus between plaintiff's claim and defendants' cross-claim to attract special costs order – no order for set off – interest on judgment where first hearing vacated by conduct of the plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58, 98, 100 Evidence Act1995 (NSW), s 135 Insurance Contracts Act 1984 (Cth), s 57 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.15A(1)(2), 42.34 Cases Cited: Benson v Rational Entertainment Enterprises Ltd (No 2) [2018] NSWCA 148 Bullock v London General Omnibus Company [1907] 1 KB 264 Calderbank v Calderbank (1975) 3 All ER 333 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Cutting Edge Services Pty Ltd v Raymond & Therese Penfold [2020] NSWSC 1012 Cutting Edge Services Pty Ltd v Raymond & Therese Penfold; Raymond & Therese Penfold v The Hollard Insurance Company Pty Ltd [2021] NSWSC 1322 DIF III – Global Co-Investment Fund LP v Babcock & Brown International Pty Limited (No 2) [2019] NSWSC 1578 Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401; [1988] FCA 364 Furber v. Stacey & Anor. [2005] NSWCA 242 Hamod v State of New South Wales (2002) 188 ALR 659; [2002] FCA 424 Hansen v Marco Engineering (Aust) Pty Ltd [1948] VLR 198 In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) (No 2) [2021] NSWSC 1161 Kanjian Holdings No 1 Pty Ltd v Kanjian; Kanjian v Kanjian (No 4) [2021] NSWSC 1390 Lahoud v Lahoud [2010] NSWSC 1297 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 s 56(3). Sanderson v Blyth Theatre Co [1903] 2 KB 533 Coombes v Roads and Traffic Authority (No 2) [2007] NSWCA 70 State of New South Wales v Quirk [2012] NSWCA 216 Tanilba Beach Pty Limited v JR & JB Pty Limited [2018] NSWSC 288 Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160 Texts Cited: G E Dal Pont, Law of Costs (5th ed, LexisNexis Butterworths, 2021) Category: Costs Parties: Cutting Edge Services (Aust) Pty Ltd (Plaintiff) Raymond Mark Penfold (First Defendant/Cross-Claimant) Ruth Therese Penfold (Second Defendant/Cross-Claimant) The Hollard Insurance Company Pty Ltd (Cross-Defendant) Representation: Counsel: G Carolan (Plaintiff) J Drummond with P Boncardo (Defendants/Cross‑Claimants) E Peden SC with P Mann (Cross-Defendant)