MURRAY'S Transport NSW Pty Ltd v CGU Insurance Limited (No 2)

Murray’s Transport NSW Pty Ltd appealed to the Full Court of the Supreme Court of South Australia against a decision concerning a motor vehicle accident. The dispute involved a claim for damages to a B-double truck owned by Murray’s Transport, which was insured by CGU Insurance Limited. The Court had previously allowed the appeal in part, ordering CGU Insurance to pay 85 per cent of the damage to the truck, with 15 per cent attributed to contributory negligence by Murray’s Transport. The Court reserved its decision on the matters of interest and costs.

The central legal issues before the Court concerned the entitlement of Murray’s Transport to its costs of both the trial and the appeal, specifically whether these costs should be awarded on a solicitor-client basis. This question arose in circumstances where the parties had agreed on the quantum of damages and pre-judgment interest. Crucially, the judgment awarded to Murray’s Transport on appeal exceeded the amount of a settlement offer made by Murray’s Transport shortly before the trial. Further complicating the cost assessment were findings that Murray’s Transport had failed to comply with rule 33 of the District Court Civil Rules 2006 (SA) and CGU Insurance’s submission that two trial dates had been vacated due to Murray’s Transport’s conduct.

The Court determined that Murray’s Transport was not entitled to its costs of the trial, nor its costs of the appeal, on a solicitor-client basis. The Court reasoned that while the judgment in favour of Murray’s Transport exceeded its settlement offer, this fact alone did not warrant a departure from the usual order for costs. Furthermore, the Court found that Murray’s Transport’s failure to comply with rule 33 and the vacating of trial dates were significant factors that weighed against an award of indemnity costs. Accordingly, the Court ordered that each party bear its own costs of the appeal.