Kabic v Workers Compensation Nominal Insurer (No. 5) [2018] NSWSC 1070

Supreme Court New South Wales

Medium Neutral Citation: Kabic v Workers Compensation Nominal Insurer (No. 5) [2018] NSWSC 1070 Hearing dates: 26 February 2018 Decision date: 11 July 2018 Jurisdiction: Common Law Before: Button J Decision: (1) Judgment for the first defendant against the third defendant on the third cross claim filed 25 August 2014 pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in the amount of $452,395.18. (2) In relation to the judgment entered in favour of the plaintiff on 16 March 2018 in the sum of $452,395.18 and the judgment entered in favour of the first defendant by Order 1, above, note: (a) payment of the amount of $452,395.18 is to be made to the first defendant by the third defendant; (b) payment of the above amount of $452,395.18 to the first defendant satisfies and discharges the plaintiff's obligation, pursuant to s151Z(1)(b) of the Workers Compensation Act 1987 (NSW), to repay workers compensation payments made to him by the first defendant in the agreed amount of $318,952.71; (c) payment of the above amount of $452,395.18 to the first defendant, pursuant to s151Z(1)(e1) of the Workers Compensation Act 1987 (NSW), satisfies and discharges the third defendant's obligation to the plaintiff, pursuant to the judgment entered against it and in favour of the plaintiff on 16 March 2018. (3) The third defendant must pay the first defendant interest on the judgment sum in order 1 above, in the amount of $117,441.68, pursuant to s 100 of the Civil Procedure Act 2005 (NSW), with such interest accruing at a daily rate of $53.34 and $14.79 respectively, in accordance with the schedule annexed and marked "A". (4) The first cross claim filed 25 August 2014 is dismissed. (5) The second cross claim filed 25 August 2014 is dismissed. (6) The third cross claim filed 25 August 214 is dismissed, subject to order 1. (7) The third defendant must pay the first defendant's costs of these proceedings. (8) The third defendant must pay the first defendant's costs of the third cross claim. (9) No order as to costs as between the first defendant and second defendant on the first cross claim with the intention that each party pay its own costs of the first cross claim. (10) No order as to costs as between the first defendant and second defendant in respect of the second cross claim with the intention that each party pay its own costs of the second cross claim. (11) The third defendant must pay the plaintiff's costs of these proceedings. (12) The plaintiff must pay the second defendant's costs of these proceedings. Catchwords: COSTS – costs following personal injury claim – number of undisputed draft orders – three remaining areas of dispute – whether plaintiff should pay costs of successful second defendant, after representation shared with unsuccessful third defendant – whether unsuccessful third defendant should pay costs of plaintiff – whether plaintiff or unsuccessful third defendant should pay costs of successful first defendant – orders made Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Kabic v Workers Compensation Nominal Insurer (No 3) [2017] NSWSC 1281 Leading Edge Events Australia Pty Ltd v Te Kanawa (No 2) [2007] NSWSC 568 Texts Cited: Dal Pont, Law of Costs (3rd ed, 2013, LexisNexis) Category: Costs Parties: Milan Kabic (Plaintiff) Workers Compensation Nominal Insurer (First Defendant) Deicorp Constructions (NSW) Pty Ltd (Second Defendant) Calcono Pty Ltd (Third Defendant) Representation: Counsel: B J Gross SC (Plaintiff) N E Chen SC (First Defendant) R Perla (Second and Third Defendants)