[2012] NSWCA 193

Izzard v Dunbier Marine Products (NSW) Pty Ltd (No 2)

(1) That the orders made by the Court on 10 May 2012 should not be varied. (2) That no order should be made as to the costs of the written submissions lodged after judgment was delivered on 10 May 2012. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords

APPEAL - application to vary costs orders made in principal judgment - no issue of principle

Judgment

[1]
BASTEN JA: I agree with Macfarlan JA.
[2]
MACFARLAN JA: The Court delivered judgment on this appeal on 10 May 2012 ([2012] NSWCA 132). One of the orders that it made was that "unless the defendants file submissions within 14 days seeking a different order, order that the TACV pay 20% of the first and second defendants' costs of the plaintiff's claim" (Order (1)(d)).
[3]
Within the period specified, the appellants, the first and second defendants in the Court below, lodged written submissions seeking an order that the TACV pay the entirety of their costs of the proceedings at first instance. They submitted that this order was appropriate because the TACV has been held liable to indemnify the appellants in respect of the plaintiff's claim and the appellants' costs of defending the plaintiff's claim were accordingly incurred for the benefit of the TACV.
[4]
I do not accept this submission. In my view the TACV should only be required to pay such of the appellants' costs of the proceedings at first instance as were referable to the litigation of the issue between the appellants and the TACV of whether the statutory policy issued by the TACV covered the plaintiff's claim. The Court's order that the TACV pay 20 per cent of the appellants' costs of the plaintiff's claim reflected its estimate that resolution of this issue accounted for 20 per cent of the proceedings at first instance. The written submissions lodged by the appellants and the TACV subsequent to the delivery of the judgment provide no reason to depart from that assessment.
[5]
The remainder of the appellants' costs may well be costs for which they are entitled to be indemnified by the TACV under the statutory policy but in my view they should not be the subject of a costs order in these proceedings as no cross-claim was brought by the appellants against the TACV. Rather, there was simply an issue that the Court was asked to determine as to the coverage of the policy. It is appropriate that the costs order relate only to the litigation of that issue and reflect the appellants' success on it.
[6]
The TACV submitted that any costs order against the TACV should not relate to costs incurred prior to 24 March 2010 when it was joined as a party to the proceedings. Recognition that the proceedings were largely concerned with issues not involving the TACV is embodied in the Court's assessment of 20 per cent as the proportion of the appellants' costs that the TACV should be ordered to pay. This assessment adequately takes into account the fact that the TACV was not a party to the proceedings from the outset.
[7]
For these reasons I do not consider that any change should be made to Order (1)(d) made by the Court on 10 May 2012.
[8]
The appellants and the TACV should each bear their own costs of the written submissions lodged after 10 May 2012 with which this judgment deals. Accordingly, the costs of the appellants' submissions do not form part of their general costs of the appeal recoverable from other parties.
[9]
BARRETT JA: I agree with Macfarlan JA.