WESFARMERS FEDERATION INSURANCE LTD v STEPHEN WELLS trading as WELLS PLUMBING [2008] NSWCA 186

New South Wales Court of Appeal

CITATION: WESFARMERS FEDERATION INSURANCE LTD v STEPHEN WELLS trading as WELLS PLUMBING [2008] NSWCA 186

HEARING DATE(S): 20 March 2008

JUDGMENT DATE: 11 August 2008

JUDGMENT OF: Hodgson JA at 1; Basten JA at 21; Handley AJA at 121

In relation to the appeal: (1) Allow the appeal in part and set aside the orders made in the District Court on 21 February 2007: (a) giving judgment for the cross-claimant (Wells) against the cross-defendant (Wesfarmers); and (b) that the cross-defendant pay the cross-claimant's costs, including costs of the plaintiff in the proceedings. (2) In lieu thereof: (a) declare that the cross-claimant is entitled to an indemnity limited to the costs incurred by him in defending the plaintiff's claim; (b) otherwise dismiss the cross-claim; (c) order the cross-claimant to pay 75% of the cross-defendant's costs of the cross-claim. DECISION: (3) Order the first respondent (Wells) to pay 75% of the appellant's costs of the appeal. (4) Grant the respondents certificates under the Suitors' Fund Act 1951 (NSW) in respect of their costs of the appeal.

In relation to the cross-appeal: (1) Allow the cross-appeal and set aside the judgment and orders in favour of the plaintiff. (2) In lieu thereof: (a) give judgment for the defendant (Wells), and (b) order the plaintiff (Hubbard) to pay the defendant's costs of the claim, (not including costs payable by the defendant on the cross-claim). (3) Order the cross-respondent (Hubbard) to pay the cross-appellant's (Wells') costs of the cross-appeal. (4) Grant the cross-respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of his costs of the cross-appeal.