Metri v Nestlé Australia Ltd (No 2) - [2021] NSWSC 518

Supreme Court

New South Wales

Medium Neutral Citation: Metri v Nestlé Australia Ltd (No 2) [2021] NSWSC 518
Hearing dates: On the papers
Decision date: 12 May 2021
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order the first defendant to pay the plaintiff’s costs of the proceedings on the ordinary basis up until and including 10 November 2017 and on an indemnity basis thereafter.
(2) Order the first defendant/cross-claimant to pay the second defendant/cross-defendant’s costs of the proceedings, which comprises its costs of the cross-claim and of defending the plaintiff’s claim.

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise compliant with Uniform Civil Procedure Rules 2005 (NSW), r 20.26 — No reason to depart from consequence provided for by Uniform Civil Procedure Rules 2005 (NSW), r 42.14 — Public interest in early and efficient disposal of proceedings
COSTS — Cross-claim — Whether first defendant ought bear costs of second defendant — Order made

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.14

Cases Cited:
Calderbank v Calderbank [1975] 3 All ER 333
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Metri v Nestlé Australia Ltd [2021] NSWSC 343
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
The Nominal Defendant v Cordin [2019] NSWCA 85; (2019) 88 MVR 410

Category: Costs
Parties: Toufic Metri (Plaintiff)
Nestlé Australia Ltd (First Defendant / Cross-claimant)
Linde Material Handling Pty Limited (Second Defendant / Cross-defendant)
Representation:
Counsel:
M Cranitch SC / T Hickey (Plaintiff)
G Parker SC / D O’Dowd (First Defendant / Cross-claimant)
M McCulloch SC / T Berberian (Second Defendant / Cross-defendant)
Solicitors:
Beilby Poulden Costello (Plaintiff)
Sparke Helmore Lawyers (First Defendant / Cross-claimant)
Moray & Agnew (Second Defendant / Cross-defendant)

File Number(s): 2015/82320

Judgment

Introduction

On 7 April 2021 I published my judgment on liability and quantum of damages (the principal judgment): Metri v Nestlé Australia Ltd [2021] NSWSC 343. I found that Nestlé Australia Ltd (the first defendant) was liable to Toufic Metri (the plaintiff) as its negligence had caused forklift 432 to eject the plaintiff from his seat in the forklift on 16 August 2012 and sustain injuries, the consequences of which included a below-knee amputation of his leg.
The parties agreed that the judgment sum was $2,933,178.51. I reserved the question of costs and invited the parties to make written submissions if any party sought an order other than that costs ought follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1.
Between the time of commencement of the proceedings and the hearing, the plaintiff made the following offers, each of which was accepted to comply with UCPR, r 20.26:

Offer

Date offer made

Time during which offer open

Amount of offer

First Offer

10 November 2017

28 days

$2.2m

Second Offer

9…

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: [2021] NSWSC 518
Decision Date: 12 May 2021

CaseChat Overview and Summary

The plaintiffs in this case, Metri, brought proceedings against Nestlé Australia Ltd seeking damages for breach of contract. The case was heard in the Supreme Court of New South Wales. Nestlé Australia Ltd defended the claims, and the plaintiffs subsequently brought a cross-claim against a second defendant, which Nestlé Australia Ltd also defended. The central issue for the court was whether the plaintiffs were entitled to costs from Nestlé Australia Ltd under the Uniform Civil Procedure Rules 2005 (NSW), r 42.14. The plaintiffs had made an offer of compromise in accordance with r 20.26 of the same rules, which Nestlé Australia Ltd had not accepted.

The court considered the effect of the offer of compromise and the consequences provided for by r 42.14 of the Uniform Civil Procedure Rules 2005 (NSW). The court noted that there was no reason to depart from the consequences provided for by this rule, particularly given the public interest in the early and efficient disposal of proceedings. The court held that the plaintiffs were entitled to costs from Nestlé Australia Ltd in accordance with r 42.14. The court further held that the first defendant ought to bear the costs of the second defendant, given that the second defendant had not been a party to the offer of compromise.

The court ordered that the plaintiffs were entitled to costs from Nestlé Australia Ltd in accordance with r 42.14 of the Uniform Civil Procedure Rules 2005 (NSW). The court further ordered that the first defendant was to bear the costs of the second defendant, and that no order be made as to the costs between the plaintiffs and the second defendant. This outcome was consistent with the consequences provided for by the relevant rules, and reflected the public interest in the efficient disposal of proceedings.

Orders