Caltex Australia Petroleum Pty Ltd v Troost (No 2) [2015] NSWCA 103

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Caltex Australia Petroleum Pty Ltd v Troost (No 2) [2015] NSWCA 103 Hearing dates: On the papers Date of orders: 20 April 2015 Decision date: 20 April 2015 Before: Meagher JA at [1]; Barrett JA at [2]; Emmett JA at [3] Decision: (1) The appeal be allowed.

(2) The orders of the District Court of 16 April 2014 be set aside.

(3) In lieu of the orders of the District Court, there be a verdict and judgment for the plaintiff against the defendant for the sum of $139,138.95 plus interest on the sum of $132,513.29 from 23 December 2009 to 23 March 2015 in the sum of $53,571.23 and an order that the defendant pay the plaintiff's costs as agreed or assessed.

(4) The respondent pay the appellant's costs of the appeal.

(5) The respondent be provided with a certificate under the Suitors' Fund Act 1951 (NSW) if he is so entitled. Catchwords: PROCEDURE – costs – application for indemnity costs – whether it was unreasonable to not accept an offer of compromise – presumption of receipt under s 160 of the Evidence Act 1995 (NSW)

GUARANTEE AND INDEMNITY – construction of indemnity – whether the appellant is entitled to the costs of these proceedings on the basis that it has suffered "losses" under the indemnity

PROCEDURE – costs – departing from the general rule – failure in a portion of a claim – whether there should be no order as to the costs of the District Court proceedings on the basis that the appellant was unsuccessful in a discrete aspect of its claim Legislation Cited: Evidence Act 1995 (NSW), s 160 Uniform Civil Procedure Rules 2005 (NSW), r 51.9 Cases Cited: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; 162 CLR 549 Category: Costs Parties: Caltex Australia Petroleum Pty Ltd (Appellant) Representation: Counsel: C Locke (Appellant) P Reynolds (Respondent)