CIMIC Group Limited v AIG Australia Limited (No 2) [2023] NSWSC 640

Supreme Court New South Wales

Medium Neutral Citation: CIMIC Group Limited v AIG Australia Limited (No 2) [2023] NSWSC 640 Hearing dates: 9 May 2023 Decision date: 15 June 2023 Jurisdiction: Equity Before: Peden J Decision: (1) The parties are to confer and provide to the Chambers of Peden J agreed short minutes giving effect to these reasons within 7 days of these orders. (2) Should agreement not be possible, then competing short minutes and brief submissions of no more than 2 pages are to be provided within 10 days of these orders. Catchwords: COSTS — Party/Party — Court's discretion — Proper characterisation of the "event" — Where insured proceeded against two insurance towers of different policy years — Where insured sought indemnities from some insurers and declarations from other insurers — Where insured successful on some indemnity claims against some insurers in one tower and declarations against other insurance tower — Where insured unsuccessful in relation to most valuable indemnity claims COSTS — Party/Party — Bases of quantification — Indemnity basis — Calderbank offers — Where timing and terms of Calderbank offers differed between insurers — Whether insured's rejection of Calderbank offers was reasonable — Where insured's claims not interdependent — No question of principle COSTS — Party/Party — Orders when proceedings involve multiple parties — Bullock and Sanderson orders — Where insured sued two towers of insurance — Where relief against one tower was pleaded in the alternative — Where insured characterised proceedings as a "tower fight" — No Bullock or Sanderson orders made COSTS — Party/Party — Interest on costs — Whether court should order otherwise than interest payable on costs — Whether interest to be calculated on the basis of statutory court rates or cost of funds — s 101 Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56-60, 101 Insurance Contracts Act ss 21, 28(3), 54 Cases Cited: Abdi v Abdi (No 2) [2022] NSWSC 582 ACQ v Cook (No 2) [2008] NSWCA 306 Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 All ER 685 Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed) [2011] NSWSC 1425 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Bullock v London General Omnibus Co [1907] 1 KB 264 Calderbank v Calderbank [1976] Fam 93 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 CIMIC Group Limited v AIG Australia Limited (No 2) [2022] NSWSC 93 CIMIC Group Limited v AIG Group Limited [2022] NSWSC 999 Coombes v Roads and Traffic Authority (No 2) [2007] NSWCA 70 DSHE Holdings Ltd (Receivers and Managers Appointed) (In Liquidation) v Nicholas Abboud (No 4) [2022] NSWCA 258 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204 Lackersteen v Jones (No 2) (1988) 93 FLR 442 Leichhardt Municipal Council v Green [2004] NSWCA 341 McKeith v Royal Bank of Scotland Group PLC [2016] NSWCA 260 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425 Nemeth v Prynew Pty Ltd [2009] NSWSC 511 Northern Territory v Sangare (2019) 265 CLR 164 Re 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 Roberts v Rodier [2006] NSWSC 1084 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Sim Development Pty Ltd v Greenvale Property Group Pty Ltd [2018] VSCA 201 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129 Category: Costs Parties: CIMIC Group Ltd (Plaintiff) AIG Australia Ltd (First Defendant) Chubb Insurance Australia Ltd (Second Defendant) Catlin Syndicate Ltd (Third Defendant) Catlin Australia Pty Ltd (Fourth Defendant) Liberty Mutual Insurance Company (Fifth Defendant) Berkley Insurance Company (Sixth Defendant) Swiss Re International SE (Seventh Defendant) Zurich Australian Insurance Ltd (Eighth Defendant) Arch Syndicate Investments Ltd (Ninth Defendant) Dual Australia Pty Ltd (Tenth Defendant) Representation: Counsel: M A Jones SC and B Ryde (Plaintiff) G Rich SC (First Defendant) S R Donaldson SC and E Kovacs (Second Defendant) I R Pike SC and M Newton (Third and Fourth Defendants) M R Elliott SC and L Hulmes (Fifth Defendant) M A Friedgut (Sixth Defendant) E Muston SC and H Mann (Seventh Defendant) R Dick SC and S Fitzpatrick (Eighth Defendant) A Horvath SC and M Caristo (Ninth and Tenth Defendants)