Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109

New South Wales Court of Appeal

CITATION: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109

HEARING DATE(S): On the papers

JUDGMENT DATE: 27 May 2008

JUDGMENT OF: Mason P at 1; McColl JA at 2; McClellan CJ at CL at 42

DECISION: 1 Appeal allowed in part. 2. Judgment entered in favour of the respondent on 5 May 2006 set aside. 3. In lieu thereof declare that the appellants are entitled to recover the extra costs of reinstatement pursuant to cl D5 of the Policy and interest on that amount pursuant to s 57 of the Insurance Contracts Act (Cth) from 7 February 2003. 4. Judgment for the appellants in the sum of $105, 872 with interest accruing at $18.56 per day from 1 April 2008 until payment of the judgment debt in full. 5. Summons otherwise dismissed. 6. As to costs:(a) Respondent to pay the appellants' costs of the appeal on the ordinary basis up to and including 7 June 2006 and thereafter on an indemnity basis; (b) respondent to pay the appellants' costs of the trial on the ordinary basis up to 18 July 2005, and thereafter on an indemnity basis. 7. Parties to file Short Minutes of Order in the Registry within fourteen days reflecting these reasons. 8. Liberty to apply to a Commercial List judge in relation to any matter relating to the working out of the costs orders, such liberty only to be exercised on seven days notice to the other party. 9. Respondent to pay the costs of the Notice of Motion.

CATCHWORDS: PROCEDURE – costs – offers of compromise – failure to establish reason for refusing offers.

Civil Procedure Act 2005 Insurance Contracts Act 1984 (Cth) LEGISLATION CITED: Supreme Court Rules 1970 Supreme Court Rules (Amendment No 405) 2005 Uniform Civil Procedure Rules 2005