Averkin v Insurance Australia Ltd (No 2)

[2016] NSWCA 150

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › District Court proceedings
4. › Rule that no costs ordinarily allowed if judgment less than $40,000
5. › Whether pre-judgment interest included in calculation of judgment amount
6. › Uniform Civil Procedure Rules 2005 (NSW), r 42.35
1. Practice and Procedure
2. › Costs
3. › Offer of compromise
4. › Relationship between r 42.35 and r 42.14
5. › Whether r 42.35 takes priority over r 42.14
6. › Whether offer of compromise displaces r 42.35 default
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 42.14, 42.35
1. Practice and Procedure
2. › Costs
3. › Offer of compromise
4. › Indemnity costs
5. › Whether unsuccessful party discharged onus of displacing presumptive entitlement to special costs order
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14
1. Insurance
2. › Motor vehicle insurance
3. › Agreed value policy
4. › Claim for total loss
5. › Deduction of excess from agreed value
6. › Measure of damages

Quick Take

Pre-judgment interest is included in calculating the $40,000 threshold under UCPR r 42.35(1)(a), following Rousianos. Where r 42.35 applies, it takes priority over r 42.14 (offer of compromise costs consequences), because r 42.35 affects whether a costs order is made at all, while r 42.14 only affects the basis of assessment. Allegations of fraud and assertions of legal complexity do not without more warrant commencing proceedings in the District Court rather than the Local Court for the purposes of r 42.35(2).