Checchia v Insurance Australia Ltd trading as NRMA Insurance (No 2) [2010] NSWSC 112

New South Wales Supreme Court

CITATION : Checchia v Insurance Australia Ltd trading as NRMA Insurance (No 2) [2010] NSWSC 112

HEARING DATE(S) : 23 October 2009 + written submissions

JUDGMENT DATE : 26 February 2010

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

(i) Judgment for the plaintiff in the amount of $1,225,000;

(ii) Pursuant to s 100 of the Civil Procedure Act 2005, the defendant shall pay interest on the aforesaid amount, calculated on and from 10 November 2006, until the date of this judgment, for the relevant period at the rate specified by Schedule 5 to the Uniform Civil Procedure Rules 2005, and thereafter pursuant to s 101 of the Civil Procedure Act 2005;

DECISION : (iii) The defendant shall pay the costs of and incidental to these proceedings on the ordinary basis up to and including 12 May 2008, and thereafter, on an indemnity basis. Such costs to be as agreed or assessed;

(iv) The judgment of 29 September 2009, as varied, shall be stayed, except as to the payment of $800,000 by the defendant to the plaintiff;

(v) Otherwise, the proceedings be dismissed.

CATCHWORDS : COSTS – offer of compromise – consideration of finding of fraud as relevant to discretion – indemnity costs ordered - INTEREST – interest prior to damage – major consideration proper compensation – consideration of delinquency not overcome entitlement to compensation for denial of funds to which plaintiff entitled – consideration of the nature of the discretion – claim is for damages, not payment under the contract and Court entitled to award interest - PRACTICE AND PROCEDURE – stay of part of money amount pending appeal – no issues of principle – stay granted

Civil Procedure Act 2005 LEGISLATION CITED : Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules 2005