Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others (No. 2) [2023] NSWDC 80

District Court New South Wales

Medium Neutral Citation: Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others (No. 2) [2023] NSWDC 80 Hearing dates: 16 March 2023 Date of orders: 04 April 2023 Decision date: 04 April 2023 Jurisdiction: Civil Before: Fitzsimmons SC DCJ Decision: In respect to proceedings 2019/392950 – Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others (1) The plaintiff's notice of motion is dismissed. (2) The plaintiff is to pay the first and second defendants' costs of the notice of motion. (3) The second defendant's notice of motion is dismissed. (4) The second defendant is to pay the plaintiff's and first defendant's costs of the motion. (5) The orders made on 13 March 2023 are confirmed. In respect to proceedings 2020/97924 – Michael Khouri v Toplace Pty Ltd & Others (1) The plaintiff's notice of motion is dismissed. (2) The plaintiff is to pay the first and second defendants' costs of the notice of motion. (3) The second defendant's notice of motion is dismissed. (4) The second defendant is to pay the plaintiff's and first defendant's costs of the motion. (5) The orders made on 13 March 2023 are confirmed. In respect to proceedings 2021/22054 – Hana Khouri v Toplace Pty Ltd & Others (1) The plaintiff's notice of motion is dismissed. (2) The plaintiff is to pay the first and second defendants' costs of the notice of motion. (3) The second defendant's notice of motion is dismissed. (4) The second defendant is to pay the plaintiff's and first defendant's costs of the motion. (5) The orders made on 13 March 2023 are confirmed. Catchwords: COSTS – offer of compromise – offer to all defendants for compromise of entire claim - whether offer is compliant with UCPR 20.26 - Calderbank offer – whether offer capable of being accepted – general discretion as to costs. COSTS – whether insurer liable for costs prior to substitution pursuant to Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – general discretion as to costs. Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56 – 58, 64, 98 Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss 4, 5 Uniform Civil Procedure Rules 2005 (NSW) 6.28, 6.32(2), 20.26, 36.16(3), 42.14 – 42.15A Cases Cited: Commonwealth of Australia v Gretton [2008] NSWCA 117 Cook v Hathway (1869) LR 8 Eq 612 Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Grbavac v Hart [1997] 1 VR 154 Greenwood v Papademetri [2007] NSWCA 221 Jones v Bradley (No 2) [2003] NSWCA 258 QBE Insurance (Australia) Limited v Hotchin & Ors [2013] NSWSC 315 Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others [2023] NSWDC 53 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Vieira v O'Shea (No 2) [2012] NSWCA 121 Category: Costs Parties: Proceedings 2019/392950: Ramsay Surveyors Pty Ltd (Plaintiff) Toplace Pty Ltd (First Defendant and Cross Claimant) Summit Formwork NSW Pty Ltd (Second Defendant and Cross Defendant)