Ritchie v Advanced Plumbing and Drains Pty Ltd (No 2) [2022] NSWSC 849

Supreme Court New South Wales

Medium Neutral Citation: Ritchie v Advanced Plumbing and Drains Pty Ltd (No 2) [2022] NSWSC 849 Hearing dates: 10 June 2022 Date of orders: 30 June 2022 Decision date: 30 June 2022 Jurisdiction: Common Law Before: Davies J Decision: 1. I vary the costs order I made on 31 March 2022 as follows: (a) I make a declaration that second defendant is required to pay the plaintiff's costs incurred in preparation for the purpose of proving items 2,3 and 4 of the plaintiff's Notice to Admit Facts dated 15 June 2020 until 2 June 2021, such costs to be assessed on an indemnity basis pursuant to r 42.8(3) of the Uniform Civil Procedure Rules 2005 (NSW); (b) Subject to (a) above, I order the plaintiff to pay 60% of the second defendant's costs. 2. I order the second defendant to pay the plaintiff's costs of the plaintiff's notice of motion filed 13 April 2022 and of the second defendant's notice of motion filed 14 April 2022. Catchwords: COSTS – representative proceedings – proceedings brought in relation to damages caused by Carwoola Bushfire – proceedings determined in favour of defendant – plaintiff successful on all but one issue – whether costs should be apportioned – assessment of time taken at hearing in relation to issue on which defendant successful – plaintiff ordered to pay 60% of defendant's costs COSTS - Notice to Admit Facts served by plaintiff – where defendant disputed facts – where defendant filed amended defence 12 months later admitting facts – where plaintiff had incurred substantial expert and other costs in preparing to prove contested facts – whether plaintiff entitled to indemnity costs in respect of preparation for the purpose of proving those facts - r 42.8 UCPR – whether Court should otherwise order - where defendant had sufficient information to admit facts in response the Notice - declaration that plaintiff entitled to indemnity costs relating to those facts COSTS – offer of compromise – served by defendant - offer of verdict for the defendant with each party to pay own costs – representative proceedings – where offer was conditional on members of class being bound - unconditional offer – where settlement required Court approval – where no element of compromise for class members – whether court likely to have approved the settlement – rational basis for displacing costs order which would otherwise flow from r 42.15A UCPR - costs not payable on indemnity basis Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 s 5 Civil Procedure Act 2005 (NSW) ss 173,179 Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 36.16, 42.8, 42.15A Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Bradley Bates v Robert Henry Cooke (No 2) [2014] NSWSC 1322 Buzzle Operations Pty Limited (in liq) v Apple Computer Australia Pty Ltd (No 2) [2010] NSWSC 490 Dodds Family Investments Pty Ltd v Lane (1993) 26 IPR 261 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Gresham Property Investments Limited v Global Consulting Services Pty Limited; Global Consulting Services Pty Limited v Gresham Property Investments Limited (No 2) [2018] NSWSC 433 Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 Johnston v Endeavour Energy [2016] NSWSC 1132 Margaret Ritchie v Advanced Plumbing and Drains Pty Ltd [2019] NSWSC 1028 Ritchie v Advanced Plumbing and Drains Pty Ltd [2022] NSWSC 330 Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 Sydney Ferries v Morton (No 2) [2010] NSWCA 238 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Texts Cited: Nil Category: Procedural rulings Parties: Margaret Ritchie (Plaintiff) Advanced Plumbing and Drains Pty Ltd (First Defendant) Insurance Australia Ltd t/as CGU Insurance (Second Defendant) Representation: Counsel: G Dalton QC & A H Edwards (Plaintiff) No appearance (First Defendant) Z Heger & R M McCaw (Second Defendant)