Averkin v Insurance Australia Ltd (No 2) [2016] NSWCA 150

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Averkin v Insurance Australia Ltd (No 2) [2016] NSWCA 150 Hearing dates: On the papers Decision date: 30 June 2016 Before: McColl JA; Basten JA; Leeming JA Decision: 1. In lieu of the judgment of 24 April 2015 in favour of the defendant insurer in the District Court, give judgment in favour of Mr Averkin in the amount of $42,239.70, taking effect as of 24 April 2015, and order that the insurer pay Mr Averkin's costs at first instance (a) assessed on an ordinary basis until and including 21 May 2014, and (b) assessed on an indemnity basis from 22 May 2014.

2. Order that the insurer pay Mr Averkin's costs of the appeal (a) assessed on an ordinary basis until and including 9 November 2015, and (b) assessed on an indemnity basis from 10 November 2015.

3. Order that the insurer pay Mr Averkin's costs of the application for the amount of judgment and for orders as to costs, assessed on an ordinary basis. Catchwords: COSTS – appeal allowed from District Court judgment – rule that no costs will ordinarily be allowed if plaintiff obtains judgment less than $40,000 – appellant entitled to judgment in the amount of $38,070 plus pre-judgment interest – whether pre-judgment interest included in calculation – whether appellant entitled to special costs orders as a result of offers of compromise Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 60, 100 Evidence Act 1995 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 36.4, 42.1, 42.2, 42.14, 42.35, 51.1 Cases Cited: Averkin v Insurance Australia Ltd [2016] NSWCA 122 Blest v Brown (1862) 4 De G F & J 367; 45 ER 1225 Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 Conroy's Smallgood's Pty Ltd v Channel Seven Adelaide Pty Ltd [2007] SASC 76; (2007) 97 SASR 14 Fire & All Risks Inurance Co Ltd v Rousianos (1989) 19 NSWLR 57 K & M Prodanovski Pty Ltd v Calliden Insurance Ltd [2012] NSWCA 117 Minehan v Clarke (1870) 9 SCR 227 Spanos by his tutor Spanos v Thornberry [2013] NSWDC 193 Category: Costs Parties: Mr Michael Averkin (Appellant) Insurance Australia Ltd (Respondent) Representation: Counsel: T B Jones (Appellant) G Carolan (Respondent)