Isho v Skupien (No 2) [2014] NSWDC 122

District Court New South Wales

Medium Neutral Citation: Isho v Skupien (No 2) [2014] NSWDC 122 Decision date: 02 June 2014 Before: Cogswell SC DCJ Decision: Costs order (1) Defendant to pay plaintiff's costs to be assessed on the ordinary basis up to and including 8 June 2012. (2) Plaintiff to pay defendant's costs assessed on an indemnity basis from and including 9 June 2012. (3) Execution of judgment stayed for no more than 2 months. Catchwords: Procedure - costs - departing from general rule - order for costs on indemnity basis - offer of compromise made - Calderbank letter - whether case different in court than at offer - three factors present at offer putting plaintiff at significant risk - no exceptional circumstances - agreement defendant entitled to defence for payments made by its insurer - whether defendant also entitled to further defence for recovery payments made to worker's compensation insurer - whether amount of recovery affected by contributory negligence finding - based on finding of 65% contributory negligence, defendant entitled to defence for 35% of amount paid to worker's compensation insurer - execution of judgment stayed. Legislation Cited: Civil Procedure Act 2005 (NSW) s 56. Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 10(2). Motor Accidents Compensation Act 1999 (NSW) s 83. Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.15. Workers Compensation Act 1987 (NSW) s 151Z(1)(e). Cases Cited: Caine v Lumley General Insurance Limited (No 2) [2008] NSWCA 109. Hillier v Sheather (1995) 36 NSWLR 414. Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721. Nominal Defendant v Hawkins [2011] NSWCA 93. South Eastern Sydney Area Health Service v King [2006] NSWCA 2. Category: Costs Parties: Frank Isho (plaintiff) David Skupien (defendant) Representation: Counsel: R Petrie (plaintiff) W Fitzsimmons (defendant) Solicitors: David Legal (plaintiff) Moray & Agnew Lawyers (defendant) File Number(s): DC 2012/00067166