Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wagga Truck Towing Pty Ltd v O'Toole; IAG Limited t/as NRMA Insurance v O'Toole (No 2) [2011] NSWCA 347 Hearing dates: (On papers) Decision date: 18 November 2011 Before: Giles JA, McColl JA Decision: (1) Vary order (4) made on 15 July 2011 to provide - "Wagga Towing and NRMA to pay Mr O'Toole's costs of both appeals on a party/party basis to 31 August 2010 and on an indemnity basis from 1 September 2010 (apportioned 50:50 between themselves)"; (2) Order NRMA and Wagga Towing to pay Mr O'Toole's costs of his notice of motion filed on 29 July 2011 on a party/party basis; (3) Dismiss NRMA's notice of motion filed on 29 July 2011 with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: Costs - no question of principle. Category: Costs Parties: CA 2010/00103822: Wagga Truck Towing Pty Ltd - First Appellant Dean O'Toole - First Respondent Rhett Russell/IAG Ltd t/as NRMA Insurance - Second Respondent CA 2010/00105013 Insurance Australia Ltd t/as NRMA Insurance - Appellant Dean O'Toole - First Respondent to second appeal Wagga Truck Towing Pty Ltd - Second respondent to second appeal Representation: A D M Hewitt SC, S E Torrington - Wagga Truck Towing Pty Ltd P J Deakin QC & A J Stone - Insurance Australia Limited t/as NRMA Insurance C T Barry QC & P J Frame - Dean O'Toole Lee & Lyons Lawyers - Wagga Truck Towing Pty Ltd Insurance Australia Limited t/as NRMA Insurance - Sparke Helmore Lawyers Taylor & Scott Lawyers - Dean O'Toole File Number(s): CA 2010/103822 and CA 2010/105013 Decision under appeal Date of Decision: 2010-03-30 00:00:00 Before: Garling DCJ File Number(s): DC 4014/05 Judgment 1THE COURT : The substantive judgment in these appeals was given on 15 July 2011. The trial judge had held that each of NRMA and Wagga Towing was liable to Mr O'Toole, and on a cross-claim by NRMA had apportioned responsibility 70:30 between them. Each of NRMA and Wagga Towing appealed. The liability appeals by NRMA and Wagga Towing against Mr O'Toole were dismissed. The appeal by Wagga Towing as to apportionment was dismissed, but the appeal by NRMA as to apportionment was allowed and responsibility was re-apportioned 50:50. It was ordered that NRMA and Wagga Towing pay Mr O'Toole's costs of both appeals, apportioned 50:50 between them, and that Wagga Towing pay one-third of NRMA's costs of both appeals. 2Pursuant to notices of motion both filed on 29 July 2011 - (a) Mr O'Toole sought an order that the costs order in his favour be on a party/party basis to 31 August 2010 and on an indemnity basis from 1 September 2010; and (b) NRMA sought orders - (i) to the same effect as the order sought by Mr O'Toole; (ii) that Wagga Towing pay NRMA's costs of Wagga Towing's appeal against NRMA; (iii) that Wagga Towing pay one-third of NRMA's costs of its appeal against Wagga Towing; and (iv) that Wagga Towing and NRMA pay Mr O'Toole's costs of the District Court proceedings apportioned 50:50 between them and Wagga Towing pay NRMA's costs of the District Court cross-claim. 3Written submissions were directed, and were provided. Hodgson JA having retired, all parties agreed that, as the remaining members of the bench, we should determine the applications. (a) Mr O'Toole's notice of motion 4NRMA and Wagga Towing agreed to the variation to the costs order sought by Mr O'Toole, but the orders proposed to give effect to that agreement did not encompass agreement to pay Mr O'Toole's costs of the notice of motion. Mr O'Toole sought the costs. 5It appears accepted that the costs on an indemnity basis flowed from an offer of compromise served by Mr O'Toole on NRMA and Wagga Towing. Mr O'Toole's submissions state, and the responsive submissions do not contest, that on 4 July 2011 he wrote seeking costs in accordance with service of the offer of compromise, and that no replies were received "such that O'Toole was required to file the Notice of Motion". 6The submissions of NRMA and Wagga Towing said nothing as to the costs of Mr O'Toole's notice of motion. The date of 4 July 2011 may be a mistake since it precedes the date of judgment; alternatively, Mr O'Toole may have anticipated a favourable judgment. In the absence of further information we proceed on the latter basis. 7The acceptance of entitlement to costs on an indemnity basis should have been indicated before Mr O'Toole filed the notice of motion. NRMA and Wagga Towing should pay Mr O'Toole's costs of the notice of motion, apportioned 50:50 between them. In accordance with Mr O'Toole's submissions, those costs should be on a party/party basis. (b) NRMA's notice of motion 8We go first to orders sought as to costs in the District Court. 9The appeal papers do not include a formal record of the orders made by the trial judge. From the transcript of the discussion at the conclusion of the trial judge's reasons it was ordered that each of NRMA and Wagga Towing pay Mr O'Toole's costs of his claim against it and Wagga Towing pay NRMA's costs of the cross-claim. 10Wagga Towing agreed that it should pay NRMA's costs of the District Court cross-claim, but that had been ordered in the District Court. No order of this Court is required. 11As to Mr O'Toole's costs, NRMA submitted that the costs order in favour of Mr O'Toole should provide for the now 50:50 apportionment. Wagga Towing did not oppose this in principle, but submitted that it had been joined in the District Court some years after the commencement of the proceedings by Mr O'Toole and should only be liable for costs while it was a party; so, it said, the equal sharing with NRMA should only be from the date it was joined in the proceedings. 12Both parties' submissions were misconceived. The costs order in the District Court provided for their separate liabilities in costs to Mr O'Toole. From the transcript, that was done in recognition that Wagga Towing had been joined at a later time. There was no order that Wagga Towing pay to NRMA some of the costs payable by NRMA to Mr O'Toole and NRMA did not appeal against the failure to make such an order. There is no occasion for the order sought by NRMA. 13We go then to the appeal costs. The effective variation sought by NRMA was that Wagga Towing pay the whole of NRMA's costs of Wagga Towing's appeal as to apportionment, rather than one-third of those costs. 14NRMA submitted that Wagga Towing amended its grounds of appeal and its written submissions more than once, and that the additional costs it (NRMA) was required to expend in responding to Wagga Towing's changing position, when in the result the Wagga Towing appeal wholly failed, warranted a full order for costs. Wagga Towing submitted that its constant position was that it had no liability to Mr O'Toole, and that the appeal was "on the basis of primary liability only to Mr O'Toole and to this extent, Wagga Towing says that [NRMA] should pay its own costs of the Appeal". 15Wagga Towing's submissions were not responsive to the basis of NRMA's application. Nor was there an application by it to vary the costs orders whereby NRMA paid its own costs of the Wagga Towing appeal, and the submissions in this respect are difficult to understand. The submissions were also inaccurate, in that Wagga Towing had challenged the 70:30 apportionment. 16However, modification of grounds of appeal and written submissions is not uncommon, and NRMA did not descend into any detail as to the change(s) in position. The failure of Wagga Towing's appeal was recognised in the orders made at the time of judgment. We are not persuaded that any variation of the orders in this respect should be made. Orders 17We make the following orders - (1) Vary order (4) made on 15 July 2011 to provide - "Wagga Towing and NRMA to pay Mr O'Toole's costs of both appeals on a party/party basis to 31 August 2010 and on an indemnity basis from 1 September 2010 (apportioned 50:50 between themselves)"; (2) Order NRMA and Wagga Towing to pay Mr O'Toole's costs of his notice of motion filed on 29 July 2011 on a party/party basis; (3) Dismiss NRMA's notice of motion filed on 29 July 2011 with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2011