Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd

[2012] NSWDC 116

District Court

New South Wales

Medium Neutral Citation:	Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd [2012] NSWDC 116
Hearing dates:	On the papers
Decision date:	17 August 2012
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	1. Confirm the costs order made on 3 August 2012.
Catchwords:	Costs
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:	Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd [2012] NSWDC 112
Category:	Costs
Parties:	Four Seasons Jewellers Pty Ltd (plaintiff) Assetinsure Pty Ltd (defendant)
Representation:	Mr T Boyd with Mr J Cairn (plaintiff) Mr J Poulos QC (defendant) Herbert Weller (plaintiff) Hicksons Lawyers (defendant)
File Number(s):	2011/152514
Publication restriction:	No

Judgment

1. On 3 August 2012 I gave judgment for the plaintiff in the sum of $84,881.13, and ordered the defendant to pay the plaintiff's costs. I gave the parties liberty to make further submissions and file further evidence in respect of costs. Both parties emailed submissions in accordance with that leave (see Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd [2012] NSWDC 112 at [113] et seq).

1. The defendant submitted that each party should bear their own costs, on the basis that the plaintiff "failed on the case it pressed upon the Court" and "only had limited success in respect of a case that emerged upon a relisting...and then in an amount which could have been recovered in much less costly proceedings brought in the Local Court".

1. I do not accept that the plaintiff failed on the case it presented to the Court. The defendant did not concede either the robbery or the entitlement of the plaintiff to recover its loss under the policy. Those matters of liability were determined in the plaintiff's favour.

1. The amount of the loss was also in issue but the defendant made no concession of an amount for which it was liable. The defendant did make an ex gratia offer prior to the commencement of proceedings, but this was for an amount substantially less than the amount awarded to the plaintiff (see Four Seasons Jewellers Pty Ltd v Assetinsure Pty Ltd [2012] NSWDC 112 at [49]-[51]).

1. Judgment in an amount less than $40,000 may impact on the costs order to be awarded to a successful party: see Uniform Civil Procedure Rules 2005 at 42.35. This rule has no application to the judgment awarded to the plaintiff.

1. Whilst the jurisdiction of the Local Court was increased from $60,000 to $100,000 shortly prior to the commencement of the proceedings, I nevertheless regard commencement of the proceedings in the District Court as warranted. The matter was not without complications and it was not unreasonable to suppose, at the time of commencement of proceedings, that the loss might exceed $100,000.

1. The plaintiff did not amend its case on the relisting as the defendant's submissions indicate. On the contrary, the plaintiff expressly declined to do so and suffered an adverse costs order in respect of the costs thrown away by its delay in so deciding.

1. In my view, this was a case where the defendant might have obtained some measure of protection against a costs order had it made a relevant offer of compromise or a Calderbank offer. It evidently declined to do so.

1. For those reasons, I do not propose to vary the orders made on 3 August 2012.

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