Briffa v Rail Corporation New South Wales (No. 2) [2014] NSWDC 225

District Court New South Wales

Medium Neutral Citation: Briffa v Rail Corporation New South Wales (No. 2) [2014] NSWDC 225 Hearing dates: 11 September 2014 Decision date: 18 September 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The first cross-claim between Rail Corporation New South Wales and McDonald's Australia Ltd is dismissed with no order as to costs. (2) Third and fourth defendants to pay the plaintiff's costs of the action between the plaintiff and the third and fourth defendants on the ordinary basis. (3) A Sanderson order that the third and fourth defendants pay the first defendant's costs of the proceedings brought by the plaintiff on the ordinary basis, such costs to be limited to the costs incurred from the date of the amended statement of claim (12 December 2012). (4) As to the cross-claim Rail Corporation New South Wales v Frank Meduri & Meduri Enterprises Pty Ltd, judgment for the cross-claimant, with the cross-defendants to pay the cross-claimant's costs on an ordinary basis up to 17 March 2014 and on an indemnity basis from 18 March 2014. (5) As to the cross-claim Frank Meduri & Meduri Enterprises Pty Ltd v Rail Corporation New South Wales, cross-claim dismissed, with the cross-claimants to pay the cross-defendant's costs on an ordinary basis up to 17 March 2014 and on an indemnity basis from 18 March 2014. (6) The third and fourth defendants' applications in relation to the costs of the cross-claims are dismissed. (7) The third and fourth defendants are to pay the costs of the plaintiff in relation to this application for costs on an ordinary basis, but are to pay the costs of the first defendant on an indemnity basis. Catchwords: COSTS - Plaintiff brings personal injury proceedings against defendants who cross-claim against each other - plaintiff is unsuccessful against one defendant - whether the unsuccessful defendants should pay the costs of the plaintiff in relation to her unsuccessful claim against the other defendant - whether a Sanderson (Sanderson v Blyth Theatre Co [1903] 2 KB 533) or Bullock order (Bullock v London General Omnibus Company [1907] 1 KB 264) should be made - whether, if such costs are payable, they should extend to costs incurred prior to the joinder of the unsuccessful defendants - whether asserted delay in aspects of the conduct of the litigation by the plaintiff was a relevant factor in relation to costs - Whether the first defendant is entitled to an order for indemnity costs from the third and fourth defendants by reason of an offer of contribution under r 42.18 Uniform Civil Procedure Rules 2005 (NSW) - comparison of offers of contribution between defendants with offers of compromise and Calderbank offers which resolve the whole of the litigation - whether costs should be awarded on an indemnity basis - factors relevant to the award of indemnity costs for offers of contribution - indemnity costs awarded Legislation Cited: Civil Procedure Act 2005 (NSW), s 60 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 20.32 and 42.18 Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Bullock v London General Omnibus Company [1907] 1 KB 264 C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 Coombes v Roads and Traffic Authority (No 2) [2007] NSWCA 70 Cretazzo v Lombardi (1975) 13 SASR 4 Diamond v Simpson (No 4) [2004] NSWCA 57 Dominello v Dominello (No 2) [2009] NSWCA 257 Gould v Vaggelas (1985) 157 CLR 215 Henderson v Simon Engineering (Aust) Pty Ltd [1988] V R 867 James Hardie & Co Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679 Makita (Australia) Pty Ltd v Sprowles (2001) 53 NSWLR 705 Raulfs v Fishy Bite Pty Ltd [2012] NSWCA 135 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 RTA v Palmer (No 2) [2005] NSWCA 140 Sanderson v Blyth Theatre Co [1903] 2 KB 533 Schepis v Commonwealth [2013] NSWCA 354 Simmons v Rockdale City Council (No 2) [2014] NSWSC 1275 Thornton v Wollondilly Mobile Engineering (No 2) [2012] NSWSC 742 Texts Cited: - Category: Costs Parties: Plaintiff: Josephine Briffa First Defendant: Rail Corporation New South Wales Third Defendant: Meduri Enterprises Pty Limited Fourth Defendant: Frank Meduri Representation: Plaintiff: Ms M Campbell First Defendant: Mr D King (solicitor) Third and Fourth Defendants: Mr J Sharpe Plaintiff: Brydens Law Office First Defendant: Gillis Delaney Lawyers Third and Fourth Defendants: McCulloch & Buggy Lawyers File Number(s): 2012/196065 Publication restriction: None