Ace-Semi Trailer Sales Pty Ltd v Zurich Australia Insurance Ltd

[2009] NSWCA 381

NSW Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Proceedings involving s 151Z Workers Compensation Act 1987
3. › Cross-claim by third party against employer for joint tortfeasor contribution
4. › Whether cross-claimant entitled to costs of cross-claim
5. › Whether cross-claim served useful purpose
1. Costs
2. › Contribution between joint tortfeasors
3. › Whether cross-defendant employer should contribute to costs payable by third party to worker
4. › Whether hypothetical costs regime under Workers Compensation Regulation 2003 cl 91 relevant to assessment of just and equitable contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946
5. › Workers Compensation Regulation 2003 (NSW), cl 91
1. Costs
2. › Offer of compromise
3. › Whether offer of compromise entitled offeror to indemnity costs in separate proceedings
4. › Whether judgment obtained was no less favourable than offer
5. › Whether outcome of other proceedings may be taken into account
6. › Uniform Civil Procedure Rules 2005 (NSW), r 42.14
1. Costs
2. › Calderbank offers
3. › Whether unreasonable to reject offer
4. › Whether acceptance would have reduced costs or shortened hearing

Quick Take

In proceedings involving s 151Z of the Workers Compensation Act 1987, where a third party tortfeasor cross-claims against an employer for joint tortfeasor contribution, the employer's liability for costs should not include a contribution to the costs payable by the third party to the worker if, in hypothetical proceedings by the worker against the employer, no costs order would have been made against the employer by reason of cl 91 of the Workers Compensation Regulation 2003. An offer of compromise under UCPR r 42.14 is assessed by reference to the judgment obtained in the proceedings in which the offer was made, and cannot take into account outcomes achieved in separate proceedings.