District Court New South Wales Medium Neutral Citation: Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd [2012] NSWDC 116 Hearing dates: On the papers Decision date: 17 August 2012 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Confirm the costs order made on 3 August 2012. Catchwords: Costs Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd [2012] NSWDC 112 Category: Costs Parties: Four Seasons Jewellers Pty Ltd (plaintiff) Assetinsure Pty Ltd (defendant) Representation: Mr T Boyd with Mr J Cairn (plaintiff) Mr J Poulos QC (defendant) Herbert Weller (plaintiff) Hicksons Lawyers (defendant) File Number(s): 2011/152514 Publication restriction: No Judgment 1On 3 August 2012 I gave judgment for the plaintiff in the sum of $84,881.13, and ordered the defendant to pay the plaintiff's costs. I gave the parties liberty to make further submissions and file further evidence in respect of costs. Both parties emailed submissions in accordance with that leave (see Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd [2012] NSWDC 112 at [113] et seq). 2The defendant submitted that each party should bear their own costs, on the basis that the plaintiff "failed on the case it pressed upon the Court" and "only had limited success in respect of a case that emerged upon a relisting...and then in an amount which could have been recovered in much less costly proceedings brought in the Local Court". 3I do not accept that the plaintiff failed on the case it presented to the Court. The defendant did not concede either the robbery or the entitlement of the plaintiff to recover its loss under the policy. Those matters of liability were determined in the plaintiff's favour. 4The amount of the loss was also in issue but the defendant made no concession of an amount for which it was liable. The defendant did make an ex gratia offer prior to the commencement of proceedings, but this was for an amount substantially less than the amount awarded to the plaintiff (see Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd [2012] NSWDC 112 at [49]-[51]). 5Judgment in an amount less than $40,000 may impact on the costs order to be awarded to a successful party: see Uniform Civil Procedure Rules 2005 at 42.35. This rule has no application to the judgment awarded to the plaintiff. 6Whilst the jurisdiction of the Local Court was increased from $60,000 to $100,000 shortly prior to the commencement of the proceedings, I nevertheless regard commencement of the proceedings in the District Court as warranted. The matter was not without complications and it was not unreasonable to suppose, at the time of commencement of proceedings, that the loss might exceed $100,000. 7The plaintiff did not amend its case on the relisting as the defendant's submissions indicate. On the contrary, the plaintiff expressly declined to do so and suffered an adverse costs order in respect of the costs thrown away by its delay in so deciding. 8In my view, this was a case where the defendant might have obtained some measure of protection against a costs order had it made a relevant offer of compromise or a Calderbank offer. It evidently declined to do so. 9For those reasons, I do not propose to vary the orders made on 3 August 2012. ********** 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: 21 August 2012