Cat Media Pty Ltd v Allianz Australia Insurance Ltd - [2006] NSWSC 790

No judgment structure available for this case.

CITATION: Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790

HEARING DATE(S): 28 July 2006

JUDGMENT DATE :
9 August 2006

JUDGMENT OF: Bergin J

DECISION: Indemnity costs refused - interest awarded.

CATCHWORDS: [COSTS] Application for indemnity costs - Calderbank letter - whether genuine offer of compromise - whether rejection of offer unreasonable - whether interest to be awarded.

CASES CITED: Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 423
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Lahoud v Lahoud [2006] NSWSC 126
Leichhardt Municipal Council v Green [2004] NSWCA 341
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1987) 186 CLR 622

PARTIES: Cat Media Pty Limited (ACN 077 817 522) (plaintiff)
Allianz Australia Limited (ACN 000 122 850) (defendant)

FILE NUMBER(S): SC 50064/04

COUNSEL: Mr JAC Potts (plaintiff)
Mr AS Martin SC/ Mr SA Wells (defendant)

SOLICITORS: Clayton Utz (plaintiff)
McMahons National Lawyers (defendant)

- 17 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BERGIN J

9 AUGUST 2006

50064/04 CAT MEDIA PTY LTD v ALLIANZ AUSTRALIA INSURANCE LTD

JUDGMENT

1 On 24 May 2006 I published my reasons for dismissing the plaintiff’s (Cat Media Pty Ltd) Second Further Amended Summons in which it sought the entry of judgment for $2.5 million against the defendant (Allianz Australia Insurance Ltd) for interruption to its business allegedly pursuant to its entitlements under the policy of insurance with the defendant (the Policy): Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 423 (the judgment).

2 On 14 June 2006 the defendant filed a Notice of Motion seeking an order that the plaintiff pay the defendant’s costs and disbursements of the proceedings on a party and party basis up until 28 February 2006 and on an indemnity basis thereafter. The defendant claims that such costs order should include costs of the defendant’s Cross-Claim, the plaintiff’s Notice of Motion dated 11 May 2006 and the defendant’s Notice of Motion seeking costs and other orders.

3 The defendant also seeks an order pursuant to s 101(4) of the Civil Procedure Act 2005, that the plaintiff pay interest on the costs and disbursements the subject of any order made against it calculated on the basis of an Allowed Percentage of each amount of costs and disbursements actually paid by the defendant, from the date of payment by the defendant until the payment of those costs and disbursements by the plaintiff. The Allowed Percentage is based on the formula ((y/x) x 100)% where: “x” is the total amount of costs and disbursements that the defendant has paid or is liable to pay to its legal advisors in connection with the proceedings; and “y” is the total amount of costs and disbursements allowed on assessment to the defendant in connection with the proceedings.

4 The Notice of Motion was heard on 28 July 2006 when Mr JAC Potts, of counsel, appeared for the plaintiff and Mr AS Martin SC, leading Mr SA Wells, of counsel, appeared for the defendant.

5 The plaintiff made a claim on the defendant under the Policy on 10 June 2003. The defendant denied indemnity on 4 July 2003. The plaintiff commenced the proceedings on 19 May 2004. On 16 September 2005 the matter was set down for hearing for 2 weeks commencing on 27 March 2006. On 31 January 2006 the defendant’s solicitors, McMahons National Lawyers, wrote to the plaintiff’s solicitors, Clayton Utz, in terms that included the following:

We have reviewed the pleadings and evidence in this matter and have formed the view that Allianz is likely to succeed in its defence of CAT Media’s claim and its cross-claim against your client.

We say that CAT Media did not suffer any loss resulting from any interruption or interference with its business which falls within the terms of the Policy. Any loss did not arise from the closure of any part of PAN Pharmaceutical’s premises (“PAN’s premises”) by order of a competent public authority consequent upon a defect in sanitary arrangements at those premises.

There are a number of reasons for this. Firstly, there were no defects in the sanitary arrangements at PAN’s premises. Secondly, the letter dated 28 April 2003 from the delegate of the Secretary of Department of Health and Ageing to the managing director, PAN, did not constitute an order from a competent public authority nor was it issued consequent upon any defect in the sanitary arrangements at PAN’s premises. Thirdly, there was no closure of any part of PAN’s premises by order of a competent public authority. Fourthly, CAT Media did not suffer any loss of Gross Profit or any loss in respect of Payroll.

Even if CAT Media is successful in its claim against Allianz (contrary to Allianz’s primary position), the amount CAT Media can recover in respect of defective sanitary arrangements is limited to $100,000.00 under the terms of the Policy. The term so limiting the amount to be recovered under the Policy is the subject of Allianz’s cross-claim against CAT Media for rectification of the terms of the Policy.

The sub-limit of $100,000.00 for Allianz’s liability to indemnify in respect of the defective sanitary arrangements was inserted in Section 1 instead of Section 2 of the Placing Schedule of the Policy. The insertion of the sub-limit in the wrong place in the Placing Schedule was made by Marsh Commercial Insurance Agencies Pty Limited, the insurance broker acting on behalf of CAT Media.

The insertion of the $100,000.00 sub-limit was made as a result of a mistake common to both CAT Media and Allianz or, alternatively, as a result of a mistake by Allianz of which CAT Media was aware. Accordingly, we are of the opinion that Allianz is likely to succeed in its rectification claim against your client.

Notwithstanding the foregoing, Allianz is aware of the risks of litigation and is willing to settle this matter on a commercial basis. Accordingly, Allianz offers to pay CAT Media the sum of $100,000.00 on the basis that each party pay its own costs in full and final settlement of the claim and cross-claim in these proceedings. This offer remains open for acceptance for 28 days from the date of receipt of this letter.

This offer is made on a without prejudice basis in accordance with the principles laid down in the Calderbank v Calderbank [1975] 3 WLR 586.

6 On 28 February 2006 Clayton Utz responded to McMahons’ letter in terms that included the following:

1.2 We are instructed to make a counter offer in full and final settlement of this matter of $1.75 million (inclusive of interest and costs). Our client’s offer is based upon the analysis below.

2. Cat Media’s Claim

2.1 Cat Media’s claim is for business interruption losses under ISR Policy No. 80 0001 489 ISC (the “Policy” ), underwritten by Allianz Australia Insurance Limited ( “Allianz” ), for $2.5 million plus interest and costs. Cat Media’s losses flow directly and indirectly from the closure of one of its suppliers, Pan Pharmaceuticals Limited ( “Pan” ), on or about 28 April 2003.

…

2.4 The evidence clearly demonstrates that the relevant manufacturing facilities of Pan were closed and that the reasons related to GMP, including issues of contamination and cleanliness. The closure of this part of the operations is sufficient to trigger indemnity under the Policy. It is not necessary for our client to establish that the whole of the Pan’s premises were closed or that the closure was without interruption. The Policy requires only that Pan’s premises were closed “in part”.

…

2.6 Our client’s case accords with commonsense. We expect that a Court would find it difficult if not impossible not to find that a key part of Pan’s premises (i.e. the production line) was shut down for some time as a result of order by the TGA and that as a result our client suffered financial loss.

…

2.8 In light of the evidence, our client remains surprised that your client remains reluctant to recognise the claim made under the Policy.

3. Rectification – Cross Claim

3.2 At best, your client’s evidence only suggests that Allianz may have been mistaken in respect of the $100,000 sub-limit of indemnity for defective sanitary arrangements. As a matter of law, this is insufficient to establish an entitlement to rectification.

3.3 In any event, there is no evidence that Cat Media (through its agent Marsh) was aware and conscious of this mistake and purposely did not draw this mistake to Allianz’s attention in order for the insurance contract to be agreed on this incorrect basis.

3.4 Accordingly, your client’s rectification case must fail.

…

5. Offer of Compromise

5.1 Our client is confident that its claim will succeed at hearing. It is similarly evident that your client’s cross-claim will fail.

5.3 This represents fifty percent of our client’s claim of $3.5 million (being the total of the limit of indemnity of $2.5 million, interest and costs). We are instructed to stress that this offer in no way reflects our client’s assessment of its prospects of success. It is calculated to afford our client with costs protection. The discount offered represents the compromise it is prepared to make to avoid further costs being incurred and management time being expended in relation to the litigation.

5.4. This offer is made on behalf of the plaintiff only and will remain open for acceptance by the defendant prior to the expiry of 28 days from the date of this letter.

Calderbank v Calderbank

7 The judgment refers to the following relevant history of the proceedings:

19 The proceedings (initially on all issues) were heard on 27, 28 and 30 March 2006, and 3 and 4 April 2006. Mr JB Simpkins SC, leading Mr JAC Potts, of counsel, appeared for the plaintiff and Mr AS Martin SC, leading Mr SA Wells, of counsel, appeared for the defendant. On 3 April 2006 problems arose concerning late evidence the plaintiff wished to call in relation to the trend of the plaintiff’s business. To accommodate this difficulty I made an order on that day, by consent, that the question of liability be determined separately and in advance of all other issues. I reserved my judgment on 4 April 2006.

8 The plaintiff’s application of 12 May 2006 referred to in paragraph 20 of the judgment was a reference to the plaintiff’s Notice of Motion dated 11 May 2006 and was heard on the morning of 24 May 2006. I delivered the judgment in the afternoon of 24 May 2006.

Relevant principles

9 In Leichhardt Municipal Council v Green [2004] NSWCA 341, Santow JA, with whom Bryson JA and Stein AJA concurred, observed that Calderbank offers are allowed because they facilitate the public policy objective of providing an incentive for parties to end their litigation as soon as possible (at [14]). The principles gleaned from this decision relevant to this application are as follows:

- the cost consequences attendant under the general law upon an offer of compromise made in a Calderbank letter are in the Court’s discretion, to be exercised having regard to all of the relevant circumstances of the case [19];

- there is not a prima facie presumption in favour of an award for indemnity costs if the Calderbank offer is not accepted and is not bettered [19];

- a Calderbank offer that has no real element of compromise in it, which is designed merely to trigger costs sanctions, will not be treated as a genuine offer of compromise [23]-[24];

- there is no rule that an optimistic offer is not a genuine offer. Whether or not it was reasonable to reject an offer is a question that may figure in the discretionary balance, but it is not a question which affects the genuineness of the offer [40];

Calderbank

10 In Evans Shire Council v Richardson (No 2) [2006] NSWCA 61, the Court (Giles, Ipp and Tobias JJA) referred to the onus being upon the applicant for the order for indemnity costs consequent upon an unaccepted Calderbank offer “to establish to the Court’s satisfaction” that in all the circumstances the failure to accept the offer was “unreasonable” [26].

11 The offer was for the defendant to pay the plaintiff $100,000 with each party to bear their own costs. The plaintiff submitted that the offer was made just under 8 weeks before the hearing commenced by which stage the evidence was complete and the matter was ready to proceed to hearing. It was submitted that the defendant knew at the time it made the offer that the $100,000 would cover only a portion of the plaintiff’s costs incurred up to that time. It was submitted that the offer was, in reality, no more than an invitation to capitulate. In this regard the plaintiff relied upon the following passage of Bryson JA’s judgment in Leichhardt at [59]:

The respondent’s case did not succeed but it was not a case which could not reasonably be argued … The only element of compromise in the offer was as to costs: otherwise it was a call on the respondent to capitulate and give up: the element of compromise was slight and the respondent’s ultimate lack of success does not to my mind demonstrate that the reasonable course for the respondent was to capitulate, nor does anything show that the respondent was delinquent with going on with the trial or in resisting the appeal.

12 The plaintiff submitted that this was an offer with no genuine element of compromise within it and was merely a device designed to trigger costs consequences.

13 The defendant submitted that the offer to pay $100,000 inclusive of costs was better than an offer to “walk away”. In this regard the defendant relied upon what Santow JA said in Leichhardt in respect of whether a “walk away” offer could be a genuine offer of compromise. A walk away offer can, in a particular case, be a genuine offer and in some cases an offer which allows only a small discount from 100% success can be genuine and realistic but it depends on the circumstances: [36]-[37].

14 It was submitted that this offer was better than a walk away offer in that the plaintiff would be subjected to an adverse costs order if the defendant were successful on its construction of any one of the elements of the sanitary arrangements extension of the Policy. It was submitted that the offer required the defendant to give up its opportunity to recover its costs if it succeeded against the plaintiff at trial and that the offer represented a very significant advantage to the plaintiff, namely, the avoidance of an adverse costs order against it should it not succeed.

15 An offer to pay only a portion of the plaintiff’s costs at such a late stage of the proceedings may well present as equivalent to a requirement that the plaintiff capitulate. I am of the view that it is a borderline case but on balance, the fact that the defendant was willing at that time to give up – or compromise – what it saw as its strong position and pay $100,000 to the plaintiff persuades me that the offer was a genuine offer of compromise.

16 The defendant submitted that the reasons put forward by the plaintiff for rejection of the offer, set out in Clayton Utz’ letter of 28 February 2006, were legally and factually inadequate. The plaintiff rejected the defendant’s offer and put its counter-offer of $1.75 million on the basis that the “relevant manufacturing facilities of Pan were closed” and that “closure of this part of the operations” was sufficient to “trigger indemnity” under the policy. The defendant relied upon the following portions of the judgment to submit that the reasoning process upon which the rejection of the offer was based has been demonstrated to be “flawed”:

43 It seems to me that the word “competent” is directed to the authority with jurisdiction over the specific events and with relevant powers to make orders for the closure or evacuation of the Premises. I am of the view that the power provided to the Secretary under s 41 of the Act to suspend Pan’s License is not a power to close or evacuate the whole or part of the Premises as that expression is to be understood in the extension clause.

44 I am of the view that it is not appropriate to characterise the suspension of the Licence as an order by a competent public authority closing Pan’s Premises within the meaning of that expression in the extension clause.

…

49 The meaning that the plaintiff attributes to the expression “other sanitary arrangements” in this Policy seems to me to be both strained and unrealistic. The uncertainty that such a meaning could cause to the defendant and the plaintiff would include the prospect of having premises closed and/or evacuated by reason of dusty equipment. It does not seem to me to have been consistent with the commercial intention of the parties that the presence of particle dust on walls and/or machinery could be a basis upon which people should be ordered to evacuate the Premises or be prohibited from entering the Premises. To my mind that is not a “businesslike interpretation” of this clause.

…

51 I am of the view that the defects in the drains in this clause must be faults that are likely to cause risk to the health or wellbeing of the people at the Premises as opposed to faults that are, for instance, merely cosmetic with no consequential danger to the health or wellbeing of the people at the Premises. This construction is supported by the location of these matters in subparagraph (ii) between the two events, the occurrence of infectious or contagious disease (subpar (i)) and the outbreak of a notifiable infectious or contagious disease (subpar (iii)). Similarly I am of the view that defects in sanitary arrangements other than in drains must be faults that are likely to cause risk to the health or wellbeing of the people at the Premises.

…

60 I am of the view that the term “closure” in the extension clause is the closure of the whole, or part of, the building or buildings comprising the Premises, that is, preventing physical access to the whole or part of the Premises. The word “closure” does not mean the cessation of manufacture pursuant to the suspension of Pan’s Licence.

17 The defendant also submitted that the plaintiff’s assertion in Clayton Utz’ letter that the defendant had not filed any evidence disputing that an order of a competent public authority was made, ignored the fact that it was the plaintiff that bore the onus in respect of those matters. It was submitted that if the plaintiff had properly construed the Policy it should have accepted the defendant’s offer and that its rejection based on the failure to accept the correct construction was unreasonable.

18 Mr Potts submitted that the presence of the Cross-Claim seeking rectification of the Policy complicated the process of consideration of the offer. Emphasis was placed upon the heavy burden of proof on an applicant for rectification. As can be seen from the judgment it was not necessary to decide the Cross-Claim because of the conclusion I reached in respect of the construction of the Policy. The defendant was not liable to indemnify the plaintiff and accordingly the claim for rectification was otiose.

19 The claim made by the plaintiff in respect of the construction of the Policy was arguable, notwithstanding the epithets that I applied to aspects of the construction for which the plaintiff contended at trial. The plaintiff was therefore placed in the position of having to consider the offer in circumstances of an arguable case at a time very close to trial. It also had to consider the offer, which as I have said was borderline as to whether it was a genuine offer of compromise, in circumstances where the defendant was seeking rectification of the Policy. It was not a straightforward situation and although I have found that the defendant’s offer was a genuine offer of compromise, it would not necessarily have presented as such at the time the offer was made.

20 I am not satisfied that the plaintiff’s conduct was unreasonable and accordingly I am of the view that the usual order should not be disturbed in the circumstances of this case. I refuse to make an order for indemnity costs.

21 Mr Potts submitted that the plaintiff should not be required to pay the defendant’s costs of the Cross-Claim having regard to the fact that I found it unnecessary to decide the claim. In this regard reliance was placed upon the following portion of McHugh J’s judgment in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1987) 186 CLR 622 at 624-625:

Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion … When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines on whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs … they had avoided. In some cases, however, the court may be able to conclude that one of the parties had acted so unreasonably that the other party should obtain the costs of the action.

…

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. … But such cases are likely to be rare.

22 In this case the parties did litigate the Cross-Claim. The evidence was before the Court and the parties made submissions in relation to the relief sought. It was unnecessary to decide those issues because of the findings made in relation to the construction of the Deed. This case is therefore different to a case that is settled without any evidence being tendered. Mr Potts submitted that I should not be drawn into making a decision on the merits of this case for the purposes of determining a costs order having regard to the fact that I held that it was unnecessary to decide the rectification suit.

23 I am satisfied that the defendant behaved most reasonably in bringing the Cross-Claim in response to the plaintiff’s claim. On one view it might have taken a robust approach to its construction of the Policy and awaited the outcome of the proceedings before seeking rectification of the Policy. However, I regard the approach that it adopted as one that was consistent with the overriding principles of the “just, quick and cheap” resolution of proceedings in this List. I do not intend to be drawn into making a finding on the merits, however I am in a position to say, having regard to the evidence that was relied upon at trial, that the defendant had a strong case in respect of its rectification suit. Taking all of the circumstances into account I am satisfied that it is appropriate that the costs order to be made against the plaintiff should include the costs of the defendant’s Cross-Claim.

Motion dated 11 May 2006

24 It does not appear to me to be really in issue that the costs awarded against the plaintiff should include the costs of the Notice of Motion brought by the plaintiff to re-open its case and to amend its pleading. As can be seen from the extracted portions of my judgment above I allowed the amendment to the pleading but refused to allow the re-opening of the plaintiff’s case for the reasons set out in the ex tempore judgment published on 12 May 2006.

25 Even if it were in issue I am satisfied that the costs order to be made against the plaintiff should include the defendant’s costs of the plaintiff’s Notice of Motion dated 11 May 2006 and argued on 24 May 2006.

26 Section 101 of the Civil Procedure Act 2005 (NSW) provides relevantly:

(4) The court may order that interest is to be paid on any amount payable under an order for the payment of costs.

(a) the date or dates upon which the costs concerned were paid, or

27 The orders sought in these proceedings are substantially in the same terms as the orders made by Campbell J in Lahoud v Lahoud [2006] NSWSC 126. In that case Campbell J dealt with costs applications in respect of proceedings that were heard over seven days by Palmer J, who upheld the claim made by the plaintiff and dismissed the cross-claim brought by the defendants. The defendants in that case accepted that it was appropriate to make an order against them as they had lost the proceedings but they opposed an indemnity costs order and an order for the payment of interest on costs. Campbell J said relevantly:

Grogan v Thiess Contractors Pty Ltd & Anor

Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (in liquidation) & Ors

Puntoriero & Anor v Water Administration Ministerial Corporation

Davies v Ku-ring-Gai Municipal Council

Hughes Bros v The Trustees of the Roman Catholic Church

Grogan v Thiess Contractors Pty Ltd & Anor

Woods v Woods

Australian Development Corporation Pty Limited v White Constructions (ACT) Pty Ltd (in liquidation) & Ors

Puntoriero & Anor v Water Administration Ministerial Corporation

Optus Networks Pty Ltd & Ors v Leighton Contractors Pty Limited & Ors

Roads and Traffic Authority v Cremona (No 3)

Legal Profession Act 2004

,

28 There is no doubt that in this case that the defendant has been paying costs to its legal advisors during the period since the proceedings commenced. The proceedings were commenced two years ago and the defendant has been out of that money from the time it paid those costs. The plaintiff submitted that the circumstances of this case are not such as to warrant the exercise of my discretion in favour of the defendant as the defendant could hardly be described as being in “indigent circumstances”. It is not necessary to establish that an applicant for an award of interest on costs is in such circumstances. This is particularly so in commercial causes. Parties to commercial litigation must understand that where large amounts of money are paid for litigating in this List interest on costs may be awarded to a successful party.

29 The exercise of this discretion is focused upon the fact that the successful party has been out of its money for some time and the consideration of whether the successful party will be appropriately compensated by an award of costs in its favour without an award of interest. It is not apt to suggest that the defendant is a large insurance company, as was suggested by the submission that it was not in indigent circumstances. It will depend upon the circumstances of each case but where the parties to the litigation are commercial parties suing and being sued for millions of dollars, the fact that the successful party has been out of money that could have been used otherwise in the commercial enterprise is a relevant factor to be taken into account in the exercise of the discretion. The matters to which Campbell J referred in Lahoud at [84] are relevant to this case.

30 I am satisfied in all the circumstances that the order for interest proposed by the defendant in its Notice of Motion should be made.

Orders

31 I make order 1 in the defendant’s Notice of Motion filed on 14 June 2006 but limited to party and party costs only. I refuse the defendant’s claim for indemnity costs. I make the order in paragraph 2 of the Notice of Motion, with the deletion of paragraph (b). I make the order in paragraph 3.

32 Although the defendant did not achieve an order for indemnity costs, it was successful in its application for an award of costs for the Cross-Claim and for an award of interest on costs, both of which were resisted. The plaintiff is to pay the defendant’s costs of the Notice of Motion of 14 June 2006.

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Citations

Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790

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Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 423

Leichhardt Municipal Council v Green [2004] NSWCA 341

Evans Shire Council v Richardson (No 2) [2006] NSWCA 61

CITATION:	Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790
HEARING DATE(S):	28 July 2006
JUDGMENT DATE :	9 August 2006
JUDGMENT OF:	Bergin J
DECISION:	Indemnity costs refused - interest awarded.
CATCHWORDS:	[COSTS] Application for indemnity costs - Calderbank letter - whether genuine offer of compromise - whether rejection of offer unreasonable - whether interest to be awarded.
CASES CITED:	Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 423 Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 Lahoud v Lahoud [2006] NSWSC 126 Leichhardt Municipal Council v Green [2004] NSWCA 341 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1987) 186 CLR 622
PARTIES:	Cat Media Pty Limited (ACN 077 817 522) (plaintiff) Allianz Australia Limited (ACN 000 122 850) (defendant)
FILE NUMBER(S):	SC 50064/04
COUNSEL:	Mr JAC Potts (plaintiff) Mr AS Martin SC/ Mr SA Wells (defendant)
SOLICITORS:	Clayton Utz (plaintiff) McMahons National Lawyers (defendant)