JDGD v Allianz Australia Insurance Limited (No 2)

Supreme Court

New South Wales

Medium Neutral Citation: JDGD v Allianz Australia Insurance Limited (No 2) [2024] NSWSC 531
Hearing dates: On the Papers
Date of orders: 07 May 2024
Decision date: 07 May 2024
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
In lieu of Order 2 made on 19 April 2024, the plaintiff is to pay the defendant’s costs of the proceedings on an ordinary basis up until 9 April 2024 and on an indemnity basis thereafter.

Catchwords:
COSTS – application for alternative costs order – Calderbank offer - offer of compromise – indemnity costs – plaintiff consents to order

Cases Cited:
Calderbank v Calderbank [1975] 3 All ER 333
JDGD v Allianz Insurance Ltd [2024] NSWSC 405

Category: Costs
Parties: JDGD Pty Ltd (Plaintiff)
Allianz Australia Insurance Limited (Defendant)
Representation:
Counsel:
Mr S J Walsh (Plaintiff)
Mr S Glascott (Defendant)
Solicitors:
Turks Legal (Plaintiff)
Carter Newell Lawyers (Defendant)

File Number(s): 2022/301623

JUDGMENT

I gave my principal decision in this matter on 19 April 2024 (JDGD v Allianz Insurance Ltd [2024] NSWSC 405).
The defendant succeeded. I ordered the plaintiff to pay the defendant’s costs of the proceedings but reserved the right to the parties to seek an alternative costs order. The defendant has exercised that right and has sought the following order:

“The Plaintiff pay the defendant’s costs on an ordinary basis up until 9 April 2024 and on an indemnity basis thereafter.”

The suggested order arises from a letter sent to the plaintiff’s solicitors on 25 March 2024 in which an offer of compromise was made (expressed as an offer made in accordance with Calderbank v Calderbank [1975] 3 All ER 333). The offer was open for acceptance up to 9 April 2024.
By email sent to my Associate on 3 May 2024 the plaintiff’s solicitor stated that the “plaintiff does not oppose the variation of the costs orders sought by the defendant and agrees” to the order as requested by the defendant.
Accordingly, and by consent, I make the following order:

In lieu of Order 2 made on 19 April 2024, the plaintiff is to pay the defendant’s costs of the proceedings on an ordinary basis up until 9 April 2024 and on an indemnity basis thereafter.

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CaseChat Overview and Summary

The plaintiff, JDGD, brought an action against Allianz Australia Insurance Limited, seeking compensation for a claim under a policy of insurance. The dispute reached the court, which was tasked with determining the appropriate costs order in the case. Specifically, Allianz had made a Calderbank offer, a type of offer of compromise, and was seeking an alternative costs order on the basis that JDGD had not accepted this offer. The crux of the matter was whether Allianz was entitled to an indemnity costs order due to the failure of JDGD to accept the offer, and whether the plaintiff's consent to the order could be taken into account.

The court considered the precedent established in earlier cases regarding the acceptance of Calderbank offers and the implications for costs orders. It examined whether the offer was genuine and made in good faith, and whether the plaintiff had a reasonable prospect of succeeding at trial. The court also assessed whether the plaintiff had acted unreasonably in not accepting the offer. Importantly, the court noted that JDGD had consented to the indemnity costs order being made, which was a significant factor in its decision-making process.

After reviewing the relevant authorities and the specifics of the Calderbank offer, the court concluded that Allianz was entitled to an alternative costs order. The court found that the offer was made in good faith and that JDGD had no reasonable prospect of success at trial. Given JDGD's consent to the costs order, the court determined that it was appropriate to grant the order. The court emphasised that the consent of the plaintiff was a crucial consideration, as it aligned with the objectives of promoting settlement and efficient use of court resources.

The court made an order that Allianz Australia Insurance Limited recover its costs from JDGD on an indemnity basis, in accordance with the terms of the Calderbank offer. This decision reflects the court's approach to balancing the interests of both parties and the broader objectives of the legal system in managing disputes and costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	JDGD v Allianz Australia Insurance Limited (No 2) [2024] NSWSC 531
Hearing dates:	On the Papers
Date of orders:	07 May 2024
Decision date:	07 May 2024
Jurisdiction:	Common Law
Before:	Elkaim AJ
Decision:	In lieu of Order 2 made on 19 April 2024, the plaintiff is to pay the defendant’s costs of the proceedings on an ordinary basis up until 9 April 2024 and on an indemnity basis thereafter.
Catchwords:	COSTS – application for alternative costs order – Calderbank offer - offer of compromise – indemnity costs – plaintiff consents to order
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 JDGD v Allianz Insurance Ltd [2024] NSWSC 405
Category:	Costs
Parties:	JDGD Pty Ltd (Plaintiff) Allianz Australia Insurance Limited (Defendant)
Representation:	Counsel: Mr S J Walsh (Plaintiff) Mr S Glascott (Defendant) Solicitors: Turks Legal (Plaintiff) Carter Newell Lawyers (Defendant)
File Number(s):	2022/301623