Gordon v Truong; Truong v Gordon (No 2)

In *Gordon v Truong; Truong v Gordon (No 2)*, the New South Wales Court of Appeal considered an application concerning the costs of a trial arising from a motor vehicle accident. The dispute involved the plaintiff, Gordon, and the defendant, Truong. While liability was admitted by the defendant on the first day of the trial, the issues of contributory negligence and the quantum of damages remained in contention. The appeal court had previously varied the judgment of the District Court.

The primary legal issues before the Court of Appeal were whether the costs ordered against the defendant in the District Court should be assessed partly on an indemnity basis, and whether the claim could have been processed through the Claims Assessment and Resolution Service (CARS) had liability been admitted earlier. The court also considered the costs of the motion for the costs of the trial. The plaintiff argued that the defendant's insurer's initial denial of fault, which exempted the claim from the CARS process, warranted an indemnity costs order for a portion of the trial.

The Court of Appeal reasoned that the defendant's insurer's conduct in initially denying fault, which prevented the matter from being resolved through the CARS process, justified a departure from the ordinary costs basis for the initial period of the trial. The court found that this conduct warranted ordering the defendant to pay the plaintiff's costs in the District Court, with the costs for the first three days of the trial to be assessed on an indemnity basis, and the remaining costs to be assessed on the ordinary basis. The court also ordered that the appellant pay the costs of the notice of motion.