Furka v Allianz Australia Insurance Ltd (re Torok) [2023] NSWDDT 4

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Furka v Allianz Australia Insurance Ltd (re Torok) [2023] NSWDDT 4 Hearing dates: 20 July 2023 Date of orders: 31 July 2023 Decision date: 31 July 2023 Before: Russell SC DCJ Decision: (1) Order the defendant to pay the plaintiff's costs of the proceedings on a party and party basis up to and including 15 March 2023, and on an indemnity basis from the beginning of 16 March 2023. (2) Order the defendant to pay the plaintiff's costs of this costs determination, such costs being on an indemnity basis as a result of Order (1). Catchwords: COSTS – indemnity costs – offer of compromise – judgment no less favourable to plaintiff – discretion to order otherwise under cl 89 of the Dust Diseases Regulation 2019 – whether "exceptional case" and "substantial injustice" on facts – where plaintiff served additional evidence after offer of compromise expired – indemnity costs ordered COSTS – Calderbank offer – defendant's non-acceptance not unreasonable where offer open for very short period of time Legislation Cited: Dust Diseases Tribunal Regulation 2019 (NSW), cll 86, 88, 89 Evidence Act 1995 (NSW), s 67 Uniform Civil Procedure Rules 2005 (NSW) 2005 Cases Cited: Leichhardt Council v Serratore [2005] NSWCA 406 Tinyow v Lee [2006] NSWCA 247 Torok v Allianz Australia Insurance Ltd [2023] NSWDDT 2 Vale v Eggins No. 2 [2007] NSWCA 12 Category: Costs Parties: Christopher Furka (Plaintiff) Allianz Australia Insurance Ltd (Defendant) Representation: Counsel: S Tzouganatos (Plaintiff) D Toomey SC (Defendant)