Bibby v Viva Energy Australia Pty Ltd (No. 2)

[2025] NSWDC 407

District Court

New South Wales

Medium Neutral Citation:

Bibby v Viva Energy Australia Pty Ltd & Anor (No. 2) [2025] NSWDC 407

Hearing dates:

Submissions up to 7 October 2025, “on the papers”

Date of orders:

20 October 2025

Decision date:

20 October 2025

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

See paragraph [39]

Catchwords:

COSTS – plaintiff in personal injury proceedings successful against first defendant but not second defendant – plaintiff and second defendant seek Bullock or Sanderson orders against the first defendant – Sanderson order made - plaintiff and second defendant seek indemnity costs orders – whether valid offers of compromise made – conflicting authority on the status of offers made by one defendant to a plaintiff were capable of being a valid offer of compromise - whether offers of compromise are also capable of being viewed at Calderbank offers – DISBURSEMENTS – hearing allocation fee not issued at the time of the hearing or at the time of judgment – potential personal liability of solicitor for the plaintiff to be addressed by appropriate orders.

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56, 58, 98

Civil Procedure Regulation 2017 (NSW) s10

Uniform Civil Procedure Rules 2005 (NSW) r 42.14

Cases Cited:

Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Levine J, 24 April 1997, unreported

Archer v Archer (No 2) [2000] NSWCA 315

Australian International Aviation College Pty Ltd v Zheng [2025] NSWCA 190

Bachour Enterprises Pty Ltd v Munzer (No 2) [2025] NSWSC 30

Bibby v Viva Energy Australia Pty Ltd & Anor [2025] NSWDC 377

Bullock v London General Omnibus Co [1907] 1 KB 264

Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333

ega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3

Gould v Vaggelas (1985) 157 CLR 544

In the matter of GTH Equipment Pty Ltd [2017] NSWSC 1816

Harvard Nominees Pty Ltd v Tiller (No 5) [2022] FCA 1510

Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; 299 FCR 224

Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391

Magenta Nominees Pty Ltd v Richard Ellis (WA) Pty Ltd [1994] FCA 302

Nicholas Francis John Bolton v John Ljubomir Atanaskovic and Lawson Andrew Jepps Trading as Atanaskovic Hartnell [2024] NSWSC 298

Pentelow v Bell Lawyers Pty Ltd (ACN 114 524 724) trading as Bell Lawyers [2016] NSWDC 186

Re Schlink; Keane v Corns (No 2) [2020] VSC 417

Sanderson v Blyth Theatre Co [1903] 2 KB 533

Steven George Villanti v Coles Group Supply Chain Pty Limited; Steven George Villanti v All Staff Australia NSW Pty Ltd t/as Allstaff Australia (No 2) [2018] NSWSC 279

University of Western Australia v Gray (No 21) (2008) 249 ALR 360; [2008] FCA 1056

Texts Cited:

Law of Costs (5th ed., at ch 11, paragraph [11.10]

Ritchie’s Uniform Civil Procedure NSW

Category:

Costs

Parties:

Plaintiff:
Mr Simon Bibby
Defendants:
First Defendant:
Viva Energy Australia Pty Ltd
Second Defendant:
Eureka Operations Pty Ltd trading as Coles Express

Representation:

Counsel:
Plaintiff:
Mr D Delmonte
Defendants:
First Defendant:
Mr S J Walsh
Second Defendant:
Mr N Polin SC

Solicitors:
Plaintiff:
Turner Freeman Lawyers
Defendants:
First Defendant:
Minter Ellison
Second Defendant:
McCulloch & Buggy Lawyers

File Number(s):

2021/00106307

Publication restriction:

Nil

Judgment

1. These were proceedings for personal injury which occupied seven days of court time. On 24 September 2025, I gave judgment for the plaintiff (Bibby v Viva Energy Australia Pty Ltd & Anor [2025] NSWDC 377). I directed the parties to bring in Short Minutes of Order reflecting the mathematically agreed sum of damages. Costs were reserved to enable consideration of all offers between the parties as well as any application for a Bullock (Bullock v London General Omnibus Co [1907] 1 KB 264) or Sanderson (Sanderson v Blyth Theatre Co [1903] 2 KB 533) order.

2. The monetary award of damages to the plaintiff, as mathematically agreed, has resulted in the following costs applications:

1. The plaintiff seeks an order for indemnity costs from the first defendant based on his Offers of Compromise dated 3 March 2025 (or alternatively 24 March 2025) under Uniform Civil Procedure Rules 2005 (NSW) “UCPR”) r 42.14.

2. The second defendant seeks an order for indemnity costs from the first defendant based on its Offers of Compromise dated 24 November 2021 (or alternatively 2 September 2022) pursuant to s 98 of the Civil Procedure Act 2005 (NSW) and UCPR r 42.14.

3. The plaintiff and second defendant both seek a Sanderson order against the first defendant insofar as their Offers of Compromise form part of their costs entitlements under a Sanderson (or alternatively a Bullock) order.

4. The first defendant submits that costs should follow the event, that no special costs orders should be made, and that no Sanderson order be made (expressing a preference, if such an order were necessary, for a Bullock order).

3. The parties provided written submissions on 3, 6 and 7 October 2025 and have requested me to determine the costs applications set out in the previous paragraph “on the papers”.

The offers made between the parties.

4. Where there has been a series of offers of compromise and/or Calderbank offers (Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333), each offer is generally considered separately by the Court determining costs issues. In cases such as the present, where there are more than two parties and there has been a series of offers, it is helpful to start with a list of what offers were made, by which party to the litigation, to which other party, and at what stage of the litigation.

5. The most concerted attempts at settlement were made by the second defendant, while the first defendant made none at all. These offers were as follows:

1. Three offers were made by the second defendant.

2. Two offers were made by the plaintiff.

3. No offers were made by the first defendant.

6. The time and content of the offers also benefits from a comparative analysis. The contents of these offers, in date order, were as follows:

Date	Event	Note
24 November 2021	The Second Defendant’s offer made to the Plaintiff: 1. Judgment in favour of the Second Defendant against the Plaintiff. 2. Each party to pay his/her or its own costs	28 days and in accordance with r 20.26 of UCPR.
2 September 2022	The Second Defendant’s offer made to the Plaintiff 1. Judgment in favour of the Second Defendant against the Plaintiff. 2. Each party to pay his/her or its own costs	28 days and in accordance with R 20.26 of UCPR
12 June 2024	The Second Defendant’s Calderbank offer made to the Plaintiff: 1. Judgment in favour of Coles Express. 2. The Plaintiff to pay $25,000.00 towards the costs incurred by Coles Express in the defence of the proceedings brought against it by the Plaintiff.
3 March 2025	The Plaintiff's offer of 3 March 2025 was an offer to accept: 1. Judgment for the Plaintiff, against the First Defendant, on the issue of liability, with a finding of 50% contributory negligence; 2. No order as to costs relevant to and arising from the liability question.	Offer made 27 days prior to the final hearing on 31 March 2025 and was expressed to be open for acceptance for only 7 days. It was made prior to the amendment to the statement of claim. The first defendant abandoned the claim for contributory negligence at the trial.
24 March 2025 at 5:35pm	Plaintiff’s Offer of Compromise in the amount of $110,000 which was addressed to both defendants (first defendant’s submissions) although the second defendant describes this as an offer to the second defendant (paragraph 4(e) of the submissions).	The offer was expressed to be opened for one day (till COB 25 March 2025 in the letter; but 4pm in the offer of Compromise). Note: The plaintiff only mentioned this offer (described as a “valid offer of compromise”) in paragraph 1.1 of the plaintiff's submissions.

7. The plaintiff’s application for indemnity costs is intertwined with his application for a Sanderson order, on the basis that the first defendant’s conduct of the case not only made the joinder of the second defendant necessary but contributed to delays and unfairness in its conduct at the time of the injury and throughout these proceedings in relation to both the plaintiff and the second defendant. The plaintiff relies only upon the offers made as a basis for seeking indemnity costs; he does not rely upon any separate claim of hopeless pleadings, delay, failure to produce documents on subpoena or any other form of unconscionable conduct of the kind warranting an award of indemnity costs.

8. The second defendant submits that it is entitled not only to a Sanderson order but also to an order for costs on an indemnity basis, but this claim for indemnity costs, like that of the plaintiff, is brought only on the basis of offers having been made and rejected, and not because of any asserted delay or unfairness.

9. The parties differ as to the date at which the indemnity costs orders they seek should commence to run:

1. The plaintiff seeks indemnity costs, based on the 25 March 2025 offer, from that date onwards, from the first defendant. Mr Del Monte asks the court to make a Sanderson (or alternatively a Bullock) order against the first defendant in relation to the second defendant’s costs.

2. The first defendant submits that no indemnity costs order of any kind should be made and, alternatively, that if an order is to be made in relation to the second defendant’s costs, it should be a Bullock order. No dates are proffered.

3. The second defendant submits that its costs should be paid on the ordinary basis until 21 November 2021 and thereafter on the indemnity basis. Alternatively, the second defendant seeks indemnity costs from 2 September 2022.

10. I was not addressed as to whether I should determine the question of Bullock or Sanderson orders or the question of offer-based indemnity costs first. The plaintiff and second defendant intermingled these issues while the first defendant dealt with indemnity costs first. I consider it is more practical to determine the question of Bullock and Sanderson orders before addressing indemnity costs issues, as the latter relate to fact-specific issues (including dates and conduct of the litigation) which need to be determined before such findings can be made.

Sanderson and Bullock orders

11. Professor Gino Dal Pont, in Law of Costs (5^th ed., at ch 11, paragraphs [11.10] ff), sets out the sources of power for courts to make such orders, noting the differing situation in which each apply. In brief, Sanderson orders are appropriate where a party has acted reasonably in joining the party against whom it was unsuccessful, where there has been conduct of the claim making it just that the successful party be joined and where it was reasonable and proper to join the successful party to the proceedings (Gould v Vaggelas (1985) 157 CLR 544 at [572]). Gould v Vaggelas requires the Court to consider two matters:

1. That it was reasonable for the plaintiff to have brought proceedings against the second defendant, and

2. That there has been some conduct by the party in question which would make it fair to impose liability on it for the costs of the successful party against the person seeking the Sanderson/Bullock order (as to what kind of conduct is required, see Steven George Villanti v Coles Group Supply Chain Pty Limited; Steven George Villanti v All Staff Australia NSW Pty Ltd t/as Allstaff Australia(No 2) [2018] NSWSC 279).

12. The difference between a Bullock and a Sanderson order is as follows. A Bullock order requires the plaintiff to pay the successful defendant's costs but then allows the plaintiff to recover those costs from the unsuccessful defendant. A Sanderson order is simpler as it merely requires the unsuccessful defendant to pay the successful defendant's costs. The main difference is the indirect nature of reimbursement in a Bullock order versus the direct payment in a Sanderson order, which is generally preferred for its efficiency and certainty.

13. The plaintiff and second defendant submit that it was not merely reasonable but unavoidable that the second defendant be joined as, at all stages before and during this litigation, the first defendant did not merely deny liability but actively asserted that the second defendant was the liable party. Although Mr Walsh submits that it was only when the amendments made to the statement of claim at the commencement of the hearing that his client’s liability became clearer, the terms of the contractual relationship between the defendants had at all times set out their respective responsibilities in relation to structural repair of the kind which was necessary when the loading ramps to the Kmart premises could no longer take vehicle weight and alternative methods of loading petrol had to be found.

14. I accept the submissions of the plaintiff and second defendant that the reasonableness of joinder of the second defendant is self-evident. Their contractual relationship was asserted by the plaintiff to be complex but their respective roles were clearly set out in the contractual documentation so carefully prepared by their legal advisers. Each of the defendants was well aware that they both had roles to play in relation to the report of structural damage to the property the subject of their contractual arrangements, and it was the first defendant which failed to comply with those obligations in sufficient time to avoid the plaintiff’s repeatedly forewarned injury.

15. The first defendant submitted that, if an order were to be made it should be a Bullock order, not a Sanderson order, although without explaining why. For the reasons set out above, I consider a Sanderson order to be more appropriate. In making a Sanderson order, I also take into account the second limb of Gould v Vaggelas and consider the first defendant’s conduct of this litigation, examples of which are set out at paragraphs 13 to 25 of Mr Del Monte’s submissions, which I will not recount again.

16. The first defendant also submitted that costs should follow the event and that the plaintiff should pay the second defendant’s costs. For the reasons set out above, I am satisfied that the plaintiff effectively had no alternative other than to join the second defendant and that the result must be a Sanderson order.

The applicable rules for costs awards on an indemnity basis

17. The general principles are as set out by the plaintiff (written submissions, paragraphs 3 – 6) and the first defendant (written submissions, paragraphs 4 – 10).

The second defendant’s application for indemnity costs

18. I have determined that the first defendant should pay the costs of the second plaintiff conformably with the reasoning in Sanderson. The next issue for determination is whether the second defendant’s costs should be paid on an indemnity basis.

19. The first submission the first defendant makes is that an offer to a party which does not dispose the whole of the proceedings is not capable of resolving the whole of the proceedings and is thus invalid. As is noted in Ritchie’s Uniform Civil Procedure NSW at [20.26.20], an offer of compromise which does not does not relate to all the claims does not prevent a valid offer being made. As is the case with a Calderbank offer (Magenta Nominees Pty Ltd v Richard Ellis (WA) Pty Ltd [1994] FCA 302, it will be a factor of relevance to the question of costs. Mr Walsh’s submissions to the contrary (submissions, paragraphs 25 and 29) are incorrect, as the making of such an offer, although insufficient to amount to an Offer of Compromise, may still be sufficient to amount to a Calderbank offer: see the authorities discussed in Ritchie at [26.20]) and in particular Antoniadis v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Levine J, 24 April 1997, unreported (offer found to be contractual in nature).

20. The decision of Archer v Archer (No 2) [2000] NSWCA 315, which is cited by the plaintiff as the definitive authority on this point, is almost epigrammatic in its brevity on this issue. Archer v Archer is not referred to in the commentary in Ritchie at [20.26.20], and neither is Harvard Nominees Pty Ltd v Tiller (No 5) [2022] FCA 1510, where Jackson J, at [24], notes differing views on this issue (an application for leave to appeal from the first instance judge’s finding concerning the Sanderson order was dismissed: Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; 299 FCR 224). Nor is it referred to in Professor Dal Pont’s Law of Costs (the encyclopaedic nature of this invaluable publication renders consultation of it to be an essential first step on any costs issue).

21. The offer made by the second defendant was capable of being accepted by the plaintiff and would have ended the second defendant’s role in the litigation. It was up to the plaintiff to decide whether to take the risk of continuing the litigation against the second defendant against the chance of losing to the first defendant because the first defendant was able to persuade the court that the second defendant should have been joined. The second defendant ought not to be shut out from the opportunity to use the Offer of Compromise system simply because there were two defendants rather than one. It was not necessary for the second defendant to make the same offer to the first defendant (which had not, it should be noted, sought to cross-claim against the second defendant and was thus not directly sued).

22. It is not uncommon for there to be conflicting decisions in costs judgments, as I noted in Pentelow v Bell Lawyers Pty Ltd (ACN 114 524 724) trading as Bell Lawyers [2016] NSWDC 186 on more than one occasion. As the subsequent appellate considerations of my judgment in that case show, costs principles regarded as bedrock law can change profoundly when subjected to careful appellate analysis.

23. Noting these potential conflicts of authority, I take the view that the principles discussed in Archer v Archer, a decision which predates the UCPR, must be interpreted in accordance with UCPR r 20.26 and ss 56 – 68 of the Civil Procedure Act (Australian International Aviation College Pty Ltd v Zheng [2025] NSWCA 190 at [11] - [12]), and that the second defendant should not be precluded from using the Offer of Compromise procedure to make an offer to the party which had joined it to the litigation. Accordingly, this basis for challenge to the second defendant’s Offer must be rejected. If I have erred in this finding, I would hold that it is still capable of being considered as a Calderbank offer and would succeed on that alternate basis.

24. The next basis for challenging the offers made by the second defendant is that they are “walk away” offers and as such did not involve a real element of compromise: Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391. I am satisfied that the was the first defendant conducted these proceedings, (including failing to provide expert reports, a late application to amend and failure to produce contemporaneous documentation sought under subpoenae) brings the first defendant within the recognised exception in Leach v The Nominal Defendant (QBE (Insurance (Australia) Ltd) (No 2) at [52] – [53].

25. The second defendant’s application for indemnity costs is accordingly granted.

The plaintiff’s application for indemnity costs

26. The plaintiff made two offers of compromise to the first defendant. Unlike the second defendant, these offers were not made until the eve of the trial. The first, dated 3 March 2025, was for judgment on liability, with an allowance of 50% for contributory negligence.

27. At the time of both offers, there were problems with the assessment of damages, as one of the plaintiff’s doctors was gravely ill and could not participate in the conclave or be cross-examined. That would not prevent a valid offer of compromise if it had been served in time. Unfortunately, the offer was made 27 days before the hearing date and was open for acceptance for 7 days.

26. The second, dated 24 March 2025, was made just under a week before the hearing commenced on 31 March 2025; it was addressed to both defendants and offered to accept $110,000. It was effectively open overnight.

27. The shortness of time alone would be reason for not considering either of these offers to be a valid offer of compromise. They can, however, be treated as Calderbank offers.

28. The plaintiff seeks an order for costs on an indemnity basis to be paid from 25 March 2025, so I restrict my observations on Calderbank principles to that offer.

29. The first difficulty is the lateness, which is difficult to justify when the relevant events occurred in 2018 and where the plaintiff’s medical condition has been stable for a lengthy period. Where an offer is made shortly before trial, it may be too late to save any costs by accepting it. Such an offer is of limited value and unlikely to result in variation of the costs orders that would otherwise follow: Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3, citing Taheri v Vitek (No 2) at [9]-[11].

30. The second difficulty is the even short period of time for which the second offer was open.

31. All the plaintiff had to do was serve this offer 28 days or more before the trial (instead of 27 days) and leave it open up until the trial. No explanation for the plaintiff’s failure to serve offers earlier is provided.

32. An offer which is both late and made only for a short time is generally regarded as being insufficient to warrant indemnity costs. While an offer on the morning of the trial was considered reasonable in Re Schlink; Keane v Corns (No 2) [2020] VSC 417 at [38], care should be taken when considering costs orders in family provision proceedings, as there are different costs considerations arising out of the familial relationship and limited funds in such proceedings. In University of Western Australia v Gray (No 21) (2008) 249 ALR 360; [2008] FCA 1056 at [40], French J considered an offer made as the trial commenced to be unsatisfactory.

33. The plaintiff’s offers were both made too late, and open for too short a period, for a costs order to be made on an indemnity basis, even on a Calderbank basis. The costs of the hearing would have been almost entirely incurred by that time.

34. Although addressing the first defendant’s conduct of this litigation for the purposes of the Sanderson order, the plaintiff did not make any formal order for indemnity costs on the basis of the first defendant’s conduct of this litigation, even in respect of the first defendant’s belated application for leave to amend and to bring a cross-claim. I would observe, however, that while there certainly was delay by the first defendant, there were other difficulties in the conduct of this litigation, such as those arising from the need to replace the plaintiff’s medical expert at short notice.

Other costs issues

37. Section 10 of the Civil procedure Regulation 2017 (NSW) provides that:

“10  Payment of hearing fees

(1) This clause applies in relation to civil proceedings in the Supreme Court or the District Court.

(2) A hearing fee in relation to any proceedings is payable—

(a) if the court makes an order as to the payment of the fee—by the parties in the proportions so ordered, or

(b) if the hearing involves a cross-claim only—by the cross-claimant, or

(c) in any other case—by the plaintiff (and not by any cross-claimant).

(3) If a party is carrying on proceedings by a solicitor or other person, the party and solicitor or other person are jointly and severally liable for the payment of the hearing fee.

(4) A hearing fee is not payable in relation to a hearing that has as its sole purpose the delivery of a reserved judgment.

(5) A hearing fee becomes payable when the court or a registrar gives written notice to the person liable to pay the hearing fee of the amount of the fee payable.”

38. As a result of recently learning of problems in issuing hearing allocation fees in other hearings, I made inquiries and discovered that the hearing allocation fee in these proceedings had never been issued, although the hearing had commenced back in March 2025. By the time I gave judgment, those fees were for a total amount of $6,597 ($2,742 Long Hearing Fee for the day 2-4 and $3,855 Long Hearing Fee for day 5-7). If the hearing allocation fees were not issued, the plaintiff’s solicitors could be held personally liable for them at any time: see s 10(3) above. After I raised the matter, the solicitors for the plaintiff took the matter up with court staff and on 1 October 2025, the relevant fee notice was issued. It was paid promptly by the plaintiff on the following day.

39. Solicitors for the plaintiff need to be proactive in relation to hearing allocation fees; if they are overlooked on assessment, the solicitor can still be jointly liable. Courts have, in circumstances where there is a perceived problem in terms of failure to pay the hearing allocation fee, made specific findings and/or orders to ensure payment by the correct party, as this relieves the solicitor for the plaintiff of the burden imposed by s 10 (3): Nicholas Francis John Bolton v John Ljubomir Atanaskovic and Lawson Andrew Jepps Trading as Atanaskovic Hartnell [2024] NSWSC 298 at [11] – [13]; Bachour Enterprises Pty Ltd v Munzer (No 2) [2025] NSWSC 30 at [36]; In the matter of GTH Equipment Pty Ltd [2017] NSWSC 1816 at [11].

40. For the avoidance of doubt, I have made an order that the hearing allocation fee should be paid by the first defendant.

41. I have included this information to assist other practitioners who may find themselves in a similar situation, as anecdotal evidence suggests that problems with the issuing and enforcement of hearing allocation fees are not as uncommon as they should be.

Orders

42. I make the following orders:

1. The first defendant pay the plaintiff’s costs of these proceedings on the ordinary basis.

2. A Sanderson order that the first defendant pay the second defendant’s costs of these proceedings on the ordinary basis until 24 November 2021 and thereafter on the indemnity basis.

3. The first defendant is to pay the hearing allocation fees and any related filing fees in full.

4. Exhibits retained until further order.

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Decision last updated: 20 October 2025