Coote v S and P Jackson Pty Ltd (No. 2) - [2014] NSWDC 214

District Court

New South Wales

Case Title: Coote v S & P Jackson Pty Ltd (No. 2)

Medium Neutral Citation: [2014] NSWDC 214

Hearing Date(s): 5 December 2013; 26 February 2014

Decision Date: 25 March 2014

Jurisdiction: Civil

Before: Gibson DCJ

Decision:
(1) As to question (1) in both proceedings 2011/271642 and 2012/275779 each of the plaintiff and the public liability insurer is to pay the costs of the CTP insurer (QBE Insurance (Australia) Limited).
(2) As to question (2) and (3) in both proceedings 2011/271642 and 2012/275779 the plaintiff is to pay the costs of each of the CTP insurer (QBE Insurance (Australia) Limited) and the public liability insurer.
(3) Plaintiff's application for costs dismissed.

Catchwords: COSTS - plaintiff injured in a crane fall brings proceedings against public liability and CTP insured defendants - defendants cross claim against each other - UCPR Pt 28 r 2 order for determination of whether the plaintiff's accident a motor accident within the provisions of s 3 Motor Accidents Act 1999 - plaintiff fails against both insurers but public liability insurer succeeds against CTP insurer - application by public liability insurer for CTP insurer (as well as the plaintiff) to pay its costs - application of the "costs follow the event" rule in circumstances where the plaintiff has failed against both defendants - identification of the costs "event" in relation to the claim and cross-claim issues as identified in the UCPR r 28(2) separate questions for determination - whether the CTP insurer had been brought into the litigation by the conduct of the public liability insurer - whether the plaintiff was entitled to costs of his own action against the CTP insurer by reason of the conduct of the public liability insurer (Ritter v Godfrey [1920] 2 KB 47)

Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW), s 98
Legal Profession Act 2004 (NSW), s 347
Motor Accidents Compensation Act 1999 (NSW), ss 3 and 109(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 28.2 and 42.1

Cases Cited: Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425
Coote v S & P Jackson Pty Ltd t/as North Coast Cranes (District Court of NSW, Letherbarrow SC DCJ, 8 February 2013)
Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423
Cretazzo v Lombardi (1975) 13 SASR 4
Furber v Stacey [2005] NSWCA 242
Hoffmann v Boland [2013] NSWCA 158
Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568
McGlinn v Waltham Contractors Ltd [2007] APP. L. R. 03/28
Oshlack v Richmond River Council (1998) 193 CLR 72
Owners Strata Plan No 64970 v Austruc Constructions Ltd (No 5) [2010] NSWSC 568
Probiotec Ltd v University of Melbourne (2008) 166 FCR 30
Ritter v Godfrey [1920] 2 KB 47
Sanderson v Blyth Theatre Company [1903] 2 KB 533

Texts Cited: Dal Pont, Law of Costs (3rd Ed., LexisNexis Australia)

Category: Costs

Parties: Plaintiff: Matthew Coote
Defendant in 2011/271642: S…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWDC 214
Decision Date: 25 March 2014

CaseChat Overview and Summary

The plaintiff, who suffered injuries in a crane accident, initiated proceedings against the public liability insurer and the CTP insurer. Both defendants cross-claimed against each other. The case was brought before the court for a determination on whether the plaintiff's accident was a motor accident as defined under the Motor Accidents Act 1999. The plaintiff's claims against both insurers were unsuccessful, but the public liability insurer successfully claimed against the CTP insurer. The public liability insurer applied for the CTP insurer, as well as the plaintiff, to cover its costs. The court had to decide the application of the "costs follow the event" principle, particularly considering the plaintiff had lost against both defendants, and the nature of the costs "event" in relation to the claim and cross-claim issues.

The court examined whether the CTP insurer had been brought into the litigation by the public liability insurer and whether the plaintiff was entitled to costs of his own action against the CTP insurer due to the conduct of the public liability insurer. The court considered the principles established in Ritter v Godfrey [1920] 2 KB 47. It held that the CTP insurer's involvement in the litigation was due to the public liability insurer's actions, thereby justifying the CTP insurer's costs being borne by the plaintiff and the public liability insurer. However, the plaintiff was not entitled to costs of his own action against the CTP insurer because the CTP insurer was not brought into the litigation by the plaintiff's actions.

The court ordered that the plaintiff and the public liability insurer were to bear the costs of the CTP insurer. Additionally, the plaintiff had to pay the costs of both the CTP insurer and the public liability insurer. The plaintiff's application for costs was dismissed. This decision highlighted the application of the "costs follow the event" principle in complex litigation scenarios where multiple insurers are involved and the plaintiff's claims have failed.

Orders

Orders of the court

(1) As to question (1) in both proceedings 2011/271642 and 2012/275779 each of the plaintiff and the public liability insurer is to pay the costs of the CTP insurer (QBE Insurance (Australia) Limited).

(2) As to question (2) and (3) in both proceedings 2011/271642 and 2012/275779 the plaintiff is to pay the costs of each of the CTP insurer (QBE Insurance (Australia) Limited) and the public liability insurer.

(3) Plaintiff's application for costs dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Coote v S & P Jackson Pty Ltd (No. 2)
Medium Neutral Citation:	[2014] NSWDC 214
Hearing Date(s):	5 December 2013; 26 February 2014
Decision Date:	25 March 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) As to question (1) in both proceedings 2011/271642 and 2012/275779 each of the plaintiff and the public liability insurer is to pay the costs of the CTP insurer (QBE Insurance (Australia) Limited). (2) As to question (2) and (3) in both proceedings 2011/271642 and 2012/275779 the plaintiff is to pay the costs of each of the CTP insurer (QBE Insurance (Australia) Limited) and the public liability insurer. (3) Plaintiff's application for costs dismissed.
Catchwords:	COSTS - plaintiff injured in a crane fall brings proceedings against public liability and CTP insured defendants - defendants cross claim against each other - UCPR Pt 28 r 2 order for determination of whether the plaintiff's accident a motor accident within the provisions of s 3 Motor Accidents Act 1999 - plaintiff fails against both insurers but public liability insurer succeeds against CTP insurer - application by public liability insurer for CTP insurer (as well as the plaintiff) to pay its costs - application of the "costs follow the event" rule in circumstances where the plaintiff has failed against both defendants - identification of the costs "event" in relation to the claim and cross-claim issues as identified in the UCPR r 28(2) separate questions for determination - whether the CTP insurer had been brought into the litigation by the conduct of the public liability insurer - whether the plaintiff was entitled to costs of his own action against the CTP insurer by reason of the conduct of the public liability insurer (Ritter v Godfrey [1920] 2 KB 47)
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), s 98 Legal Profession Act 2004 (NSW), s 347 Motor Accidents Compensation Act 1999 (NSW), ss 3 and 109(1) Uniform Civil Procedure Rules 2005 (NSW), rr 28.2 and 42.1
Cases Cited:	Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425 Coote v S & P Jackson Pty Ltd t/as North Coast Cranes (District Court of NSW, Letherbarrow SC DCJ, 8 February 2013) Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 Cretazzo v Lombardi (1975) 13 SASR 4 Furber v Stacey [2005] NSWCA 242 Hoffmann v Boland [2013] NSWCA 158 Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568 McGlinn v Waltham Contractors Ltd [2007] APP. L. R. 03/28 Oshlack v Richmond River Council (1998) 193 CLR 72 Owners Strata Plan No 64970 v Austruc Constructions Ltd (No 5) [2010] NSWSC 568 Probiotec Ltd v University of Melbourne (2008) 166 FCR 30 Ritter v Godfrey [1920] 2 KB 47 Sanderson v Blyth Theatre Company [1903] 2 KB 533
Texts Cited:	Dal Pont, Law of Costs (3rd Ed., LexisNexis Australia)
Category:	Costs
Parties:	Plaintiff: Matthew Coote Defendant in 2011/271642: S…