Kenwright v Insurance Australia Limited (No 2) [2013] NSWDC 258

District Court New South Wales

Medium Neutral Citation: Kenwright v Insurance Australia Limited (No 2) [2013] NSWDC 258 Hearing dates: 20/9/2013 Decision date: 18 October 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff against the defendant in the sum of $152,455.01. (2) The defendant to pay the plaintiff's costs. Catchwords: COSTS - insurance contract - offer of compromise - indemnity costs - applicable interest rate on judgment sum Legislation Cited: Insurance Contracts Act 1984, s 57 Insurance Contracts Regulations 1985, reg 32 Uniform Civil Procedure Rules 2005, r 42.14, 42.16 Category: Costs Parties: Dawn Juliet Kenwright (plaintiff) Insurance Australia Limited trading as NRMA Insurance ACN 000 016 722 (defendant) Representation: Mr T Boyd (plaintiff) Mr G Carolan (defendant) Herbert Weller (plaintiff) William Roberts Lawyers (defendant) File Number(s): 2011/377445 Publication restriction: No

Judgment 1On 20 September 2013 I gave reasons for judgment in this matter in favour of the plaintiff. At the conclusion of those reasons I was reminded that interest was payable in accordance with section 57 of the Insurance Contracts Act 1984 rather than under the statutorily prescribed rate appropriate to claims in general. 2Accordingly, I reserved the question of interest and costs and received further written submissions from the parties.

Interest 3The parties are agreed that the rate of interest applicable to the claim in accordance with regulation 32 of the Insurance Contracts Regulations 1985 is 7 per cent. 4In accordance with my earlier judgment, that rate applies from 1 September 2010 until 15 November 2010 in respect to the sum of $115,800, and from 15 November 2010 in respect of the larger sum of $125,135. The defendant proposed a calculation of interest, which was not disputed by the plaintiff. However, it appears to understate the interest by one day, perhaps because the defendant overlooked that 2012 was a leap year. In any event, that produces a minor increase in the amount of interest. 5In addition, that interest calculation only extended to 20 September 2013. As no judgment sum has yet been awarded and there is no evidence before me of any payment having been made, it is appropriate that I calculate interest up to today. The total interest on the claim is thus, $27,320.01 and the total judgment sum is thus, $125,135 plus $27,320.01, namely $152,455.01.