Nationwide News Pty Ltd v Naidu; Iss Security Pty Ltd v Naidu (No. 2)

[2008] NSWCA 71

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Sanderson order
4. › Preconditions for making order
5. › Whether claim against successful defendant must be interdependent with or alternative to claim against unsuccessful defendant
6. › Whether reasonableness of joinder sufficient
7. › Whether conduct of unsuccessful defendant justified imposing liability for successful defendant's costs
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Offer of compromise
5. › Uniform Civil Procedure Rules 2005 (NSW), Pt 42
1. Practice and Procedure
2. › Restitution of interim payment on appeal
3. › Whether hardship affects entitlement to order
4. › Uniform Civil Procedure Rules 2005 (NSW), r 51.54
1. Damages
2. › Workers compensation
3. › Reduction of damages under s 151Z(2)
4. › Whether reduction required where employer found not liable on appeal
5. › Workers Compensation Act 1987 (NSW), s 151Z

Quick Take

The test for a Sanderson or Bullock costs order is that stated by Gibbs CJ in Gould v Vaggelas: (1) it was reasonable for the plaintiff to proceed against the successful defendant, and (2) the conduct of the unsuccessful defendant made it fair to impose liability for the successful defendant's costs. The statement in Norwest Refrigeration that claims must be 'interdependent' or 'alternative' does not impose an additional precondition but merely identifies examples of circumstances demonstrating reasonableness. Where an employer is found not liable on appeal, the s 151Z(2) reduction of damages is no longer required and the plaintiff is entitled to full general law damages. Questions of hardship do not affect entitlement to restitution of an interim payment under UCPR r 51.54.