Rail Corporation NSW v Vero Insurance Ltd (No.2) [2012] NSWSC 926

Supreme Court New South Wales

Medium Neutral Citation: Rail Corporation NSW v Vero Insurance Ltd (No.2) [2012] NSWSC 926 Hearing dates: 18/04/2011, 19/04/201127/04/2011, 29/04/2011,02/05/2011 Decision date: 17 August 2012 Jurisdiction: Common Law Before: Garling J Decision: (1) The defendant/cross claimant to pay the plaintiffs'/cross defendants' costs of the proceedings (including the cross claims) on an ordinary basis up to and including 31 March 2011. (2) The defendant/cross claimant to pay the plaintiffs'/cross defendants' costs of the proceedings (including the cross claims) on an indemnity basis from 1 April 2011. (3) Order the defendant/cross claimant to pay to the plaintiffs/cross defendants interest on costs and disbursements, at the rates set out in Schedule 5 Uniform Civil Procedure Rules, on the allowed percentage of each amount of costs and disbursements actually paid by the plaintiffs/cross defendants, from the date of payment by the plaintiffs/cross defendants of each such amount of costs and disbursements until the first to occur of: (a) such time as the defendant/cross claimant pays the costs due to the plaintiffs/cross defendants under any order made in these proceedings, or (b) the assessment of the costs to which the plaintiffs/cross defendants are entitled pursuant to the costs orders in their favour. In this order X = the total amount of costs and disbursements which the plaintiffs/cross defendants have paid or are liable to pay to their legal advisers in connection with these proceedings, Y = the total amount of costs and disbursements allowed on assessment to the plaintiffs/cross defendants in connection with these proceedings. The allowed percentage equals ((y/x) x 100)% (4) Grant liberty to the plaintiff's cross defendants to apply upon three days notice to the other parties for an order for payment of a specific amount in respect of the interest awarded upon costs pursuant to Order (3). Catchwords: COSTS - indemnity costs - two offers by plaintiff - defendant failed to accept either - plaintiff achieved better outcome than both offers - first offer a Calderbank offer - whether failure by defendant to accept offer was unreasonable - no reference to "Calderbank" or "without prejudice" - sophisticated parties - required complex calculation of interest - short time period to respond - not unreasonable for defendant to refuse - second offer an offer of compromise - reference in offer to costs - whether complied with UCPR part 20 - whether "exclusive of costs" - principles applied by the courts - divergent authorities - no clear guideline - underlying principles of statutory interpretation - offer of compromise a complying offer - indemnity costs apply - in the alternative whether offer a non-complying offer analogous to Calderbank offer - whether genuine offer - whether unreasonable not to accept - offer in the circumstances a genuine informal offer to settle - indemnity costs apply Legislation Cited: Civil Procedure Act 2005 Motor Accidents Act 1988 Uniform Civil Procedure Rules 2005 Cases Cited: 2144 Broke Road v ACN 062 859 358 [2010] NSWSC 489 Ambulance Service of NSW v Worley (No.2) [2006] NSWCA 236; (2006) 67 NSWLR 719 Associated Confectionary (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349 Calderbank v Calderbank [1975] 3 All ER 333 Dean v Stockland Property Management Pty Ltd (No.2) [2010] NSWCA 141 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton & Anor (No.2) [2008] NSWCA 289 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No.2) [2008] NSWCA 85 Macquarie Radio Network Pty Ltd v Arthur Dent (No.2) [2007] NSWCA 339 Maitland Hospital v Fisher (No.2) [1992] 27 NSWLR 721 Miwa Pty Ltd v Siantan Properties Pte Ltd (No.2) [2011] NSWCA 344 Nominal Defendant v Hawkins [2011] NSWCA 93; (2011) 58 MVR 362 Old v McInnes & Hodgkinson [2011] NSWCA 410 Rail Corporation NSW v Vero Insurance Ltd [2012] NSWSC 632 San v Rumble (No.2) [2007] NSWCA 259, 48 MVR 492 The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No.2) [2006] NSWCA 120; (2006) 67 NSWLR 706 The Uniting Church v Takacs (No.2) [2008] NSWCA 172 Thiess Contractors Pty Ltd v SCI Operations Pty Ltd (Supreme Court of New South Wales, 21 September 1990, unreported) Tickell v Trifleska Pty Ltd (1991) 25 NSWLR 353 Trustee for the Salvation Army (NSW) Property Trust v Becker (No.2) [2007] NSWCA 194 Vieira v O'Shea (No.2) [2012] NSWCA 121 Category: Costs Parties: Rail Corporation NSW (P1) Country Rail Infrastructure Authority (P2) Vero Insurance Ltd (D) Representation: Counsel: G Watson SC / D Lloyd (P1-P2) R Burbidge QC / M Scott Solicitors: DLA Piper Australia (P1-P2) Lander & Rogers (D) File Number(s): 2008/289483