Coote v S & P Jackson Pty Ltd (No. 2) [2014] NSWDC 214

District Court New South Wales

Medium Neutral Citation: Coote v S & P Jackson Pty Ltd (No. 2) [2014] NSWDC 214 Hearing dates: 5 December 2013; 26 February 2014 Decision date: 25 March 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) As to question (1) in both proceedings 2011/271642 and 2012/275779 each of the plaintiff and the public liability insurer is to pay the costs of the CTP insurer (QBE Insurance (Australia) Limited). (2) As to question (2) and (3) in both proceedings 2011/271642 and 2012/275779 the plaintiff is to pay the costs of each of the CTP insurer (QBE Insurance (Australia) Limited) and the public liability insurer. (3) Plaintiff's application for costs dismissed. Catchwords: COSTS - plaintiff injured in a crane fall brings proceedings against public liability and CTP insured defendants - defendants cross claim against each other - UCPR Pt 28 r 2 order for determination of whether the plaintiff's accident a motor accident within the provisions of s 3 Motor Accidents Act 1999 - plaintiff fails against both insurers but public liability insurer succeeds against CTP insurer - application by public liability insurer for CTP insurer (as well as the plaintiff) to pay its costs - application of the "costs follow the event" rule in circumstances where the plaintiff has failed against both defendants - identification of the costs "event" in relation to the claim and cross-claim issues as identified in the UCPR r 28(2) separate questions for determination - whether the CTP insurer had been brought into the litigation by the conduct of the public liability insurer - whether the plaintiff was entitled to costs of his own action against the CTP insurer by reason of the conduct of the public liability insurer (Ritter v Godfrey [1920] 2 KB 47) Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), s 98 Legal Profession Act 2004 (NSW), s 347 Motor Accidents Compensation Act 1999 (NSW), ss 3 and 109(1) Uniform Civil Procedure Rules 2005 (NSW), rr 28.2 and 42.1 Cases Cited: Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425 Coote v S & P Jackson Pty Ltd t/as North Coast Cranes (District Court of NSW, Letherbarrow SC DCJ, 8 February 2013) Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 Cretazzo v Lombardi (1975) 13 SASR 4 Furber v Stacey [2005] NSWCA 242 Hoffmann v Boland [2013] NSWCA 158 Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568 McGlinn v Waltham Contractors Ltd [2007] APP. L. R. 03/28 Oshlack v Richmond River Council (1998) 193 CLR 72 Owners Strata Plan No 64970 v Austruc Constructions Ltd (No 5) [2010] NSWSC 568 Probiotec Ltd v University of Melbourne (2008) 166 FCR 30 Ritter v Godfrey [1920] 2 KB 47 Sanderson v Blyth Theatre Company [1903] 2 KB 533 Texts Cited: Dal Pont, Law of Costs (3rd Ed., LexisNexis Australia) Category: Costs Parties: Plaintiff: Matthew Coote Defendant in 2011/271642: S & P Jackson Pty Ltd Defendant in 2012/275799: S & P Jackson Pty Ltd t/as North Coast Cranes Representation: Plaintiff: Mr D Cameron (solicitor) Defendant in 2011/271642: Mr E G Romaniuk SC / Ms O J Dinkha Defendant in 2012/275799: Mr L King SC Plaintiff: Slater & Gordon Defendant in 2011/271642: Curwoods Lawyers Defendant in 2012/275799: McInnes Wilson Lawyers NSW File Number(s): 2011/271642; 2012/275799 Publication restriction: None