Rickard & Ors v Allianz Australia Insurance Ltd & Ors

Supreme Court of NSW|2010-02-26|Before: Hoeben J, Mr JJ

CITATION : Rickard & Ors v Allianz Australia Insurance Ltd & Ors (No 2) [2010] NSWSC 101

CATCHWORDS : COSTS - alternative claims against more than one defendant - action succeeding against one defendant only - Bullock and Sanderson orders - when applicable - whether conduct of unsuccessful defendant encouraged joinder of successful defendant - nature of defence raised by unsuccessful defendant - provision of information to plaintiffs - whether unsuccessful defendant's conduct constituted sufficient inducement or was otherwise unreasonable.

Compensation to Relatives Act 1897 LEGISLATION CITED : District Court Rules 1973 Motor Accidents Compensation Act 1999

Bostik Australia Pty Limited v Liddiard (No 2) [2009] NSWCA 304 Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 CASES CITED : Gould v Vaggelas (1985) HCA 85; (1985) 157 CLR 215 Harrison v Schipp [2001] NSWCA 13 Oshlack v Richmond River Council (1998) 193 CLR 72 Roads and Traffic Authority of NSW & Anor v Palmer (No 2) [2005] NSWCA 140 at [35]

Jack Rickard, Christine Kelly, Sharon Louise Dennison, Andrew Gregory Wheeler - Plaintiffs Allianz Australia Insurance Ltd - First Defendant/Cross-Claimant PARTIES : Woolworths Limited - Defendant Roads & Traffic Authority of New South Wales - Second Defendant Brian Francis Lavis and John Edwin Lavis - Third Defendants/Cross-Claimants

FILE NUMBER(S) : SC 20300/2008; 20452/2008; 20459/2008 ; 20466/2008 ; 20460/2008

Mr B Dooley SC/Mr Judd - Plaintiff Rickard Mr JJ Ryan - Plaintiff Dennison COUNSEL : Ms E Welsh - Plaintiff Wheeler Mr S Campbell SC/Mr G Smith - Allianz Insurance Australia Ltd and Woolworths Ltd Mr W Edwards - RTA of NSW Mr N Chen - Brian Francis Lavis and John Edwin Lavis

Adams Leyland Lawyers - Plaintiff Rickard Stacks Goudkamp, Solicitors - Plaintiff Kelly PD Banister, Solicitor - Plaintiff Dennison SOLICITORS : Brydens Law Office - Plaintiff Wheeler TL Lawyers - Allianz Australia Insurance Ltd and Woolworths Ltd Moray & Agnew - RTA of NSW Kennedys - Brian Francis Lavis and John Edwin Lavis

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20300/2008 - Jack RICKARD v ALLIANZ AUSTRALIA INSURANCE LIMITED & Ors (No 2) 20452/2008 - Christine KELLY v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES & Anor 20459/2008 - Sharon Louise DENNISON v ALLIANZ AUSTRALIA INSURANCE LIMITED & Anor 20460/2008 - Sharon Louise DENNISON v ALLIANZ AUSTRALIA INSURANCE LIMITED & Ors 20466/2008 - Andrew Gregory WHEELER v WOOLWORTHS LIMITED & Ors

JUDGMENT 1 HIS HONOUR: Factual background The Court delivered its reasons for judgment in this matter on 23 October 2009. This judgment is concerned with the costs which flow from those reasons. 2 The claims arose from a motor vehicle accident which occurred on 4 February 2005. At that time Mr Rickard was driving a small truck on the Riverina Highway from Corowa towards Albury. At a point near the entrance to a property called "Lyntods", Mr Rickard's vehicle collided with a Holden sedan being driven by Mr Kelly which had as its passengers Mr Dennison and Mr Wheeler. 3 There was water flowing across the Riverina Highway at the entrance to "Lyntods" and this water caused the vehicle being driven by Mr Kelly to "aquaplane" so that he lost control of it, drove onto the wrong side of the road and collided with the truck being driven by Mr Rickard. Mr Kelly and Mr Dennison died in the accident. Mr Rickard and Mr Wheeler suffered serious injuries. 4 Mr Rickard brought proceedings against Allianz, the third party insurer of Mr Kelly, on the basis that Mr Kelly was negligent in driving the Holden sedan. He brought proceedings against the RTA on the basis that it failed to properly position road signs and failed to properly maintain dish drains and construct a culvert outside the "Lyntods" property. He brought proceedings against Brian Lavis and John Lavis, the owners of "Lyntods", in negligence and in public nuisance alleging that the drainage system leading to the entrance of the property and the presence of a dam at that location, allowed a situation to continue which caused water to flow across the highway. 5 Ms Dennison brought a claim for nervous shock and compensation to relatives against Allianz and against the RTA on the same basis as Mr Rickard. In the course of the trial, she was granted leave to discontinue proceedings against the Lavis brothers. Mr Wheeler brought proceedings against Woolworths Limited and the RTA. Woolworths Limited was the owner of the car being driven by Mr Kelly and was in the same interest as Allianz. Mr Wheeler relied upon the same allegations as Mr Rickard and Ms Dennison against those defendants. He also was granted leave in the course of the trial to discontinue against the Lavis brothers. 6 Ms Kelly was the widow of the driver of the Holden sedan. She brought proceedings under the Compensation to Relatives Act 1897 against the RTA and the Lavis brothers on the same basis as Mr Rickard. The Lavis brothers cross-claimed against the RTA and Allianz and Allianz cross-claimed against the RTA and the Lavis brothers. 7 The effect of the judgment was verdicts in favour of Mr Rickard and Ms Dennison against Allianz and a verdict in favour of Mr Wheeler against Woolworths. Damages are to be assessed in respect of those verdicts. Judgment was entered in favour of the RTA against all plaintiffs. Judgment was entered in favour of the Lavis brothers against Mr Rickard and Ms Kelly. Judgments were entered on the cross-claims in accordance with those verdicts and judgments.

Mr Rickard's claim for costs 8 Mr Rickard accepted that since he failed against the RTA and the Lavis brothers, he should pay their costs. He submits, however, that he is entitled to a Bullock or a Sanderson order in his favour whereby Allianz, the unsuccessful defendant, would either indemnify him in respect of that costs liability or would pay those costs directly to the successful defendants. 9 In relation to the RTA and the Lavis brothers, it was accepted in argument that it was reasonable for Mr Rickard to join them as defendants. The issue, as was set out in Gould v Vaggelas (1985) HCA 85; (1985) 157 CLR 215, is whether the conduct of Allianz was such as to make it fair to impose on it some liability for the costs of the RTA and the Lavis brothers. The parties agreed that the recent decisions of Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 and Bostik Australia Pty Limited v Liddiard (No 2) [2009] NSWCA 304 provide useful guidance on that question. 10 It was Mr Rickard's case that Allianz had engaged in a course of conduct designed to actively encourage him to commence proceedings against both the RTA and the Lavis brothers. In order to substantiate that proposition, Mr Rickard relied upon the following:

(i) That Allianz had not merely denied negligence but had raised a positive case of inevitable accident.

(ii) The receipt of correspondence from Allianz encouraging the joinder of the two successful defendants.

(iii) The receipt of various reports from Allianz which in their terms stated that negligence on the part of the successful defendants had made a contribution to the accident. 11 In order to test that submission, some closer examination of the correspondence from Allianz is necessary. In that regard, it should be noted that Mr Rickard did not commence proceedings until 19 December 2006 and those proceedings named Allianz only as a defendant. At the time TL Lawyers (TL) were the solicitors acting for Allianz. 12 On 24 October 2006 TL sent a letter, which had attached to it a report of Mr Keramidas, who was a traffic reconstruction expert. In that report Mr Keramidas expressed the opinion that:

(i) Although the driver of the Holden sedan would have been aware of water over the road, he would not have been aware of the hazard in time to take effective action.

(ii) The RTA should have put up appropriate "Water Over Road" signs, especially in view of the fact that they had 10 hours' notice of the hazard. 13 On 1 November 2006 TL served copies of the witness statement prepared for the Coroner. The statements from employees of the RTA contained conflicting information concerning when and where "Water Over Road" signs had been erected on the highway. 14 On 25 January 2007 TL sent a letter which said: "We confirm that our client intends to pursue the Roads and Traffic Authority as a cross-defendant in the proceedings and is making further enquiries in relation to the potential involvement of further tortfeasors." 15 On 17 May 2007 TL served a report of Mr Jeffrey, geotechnical engineer, which contained material which suggested negligence on the part of the RTA and the Lavis brothers. 16 On 25 May 2007 TL sent a further letter, which contained the following paragraphs: "We should advise you that the related proceedings for the Estate of Dennison issued in Parramatta District Court, have sought to include the Roads and Traffic Authority as a defendant to the proceedings. … We note that you do not seek to pursue any other tortfeasors as primary defendants despite our denial of liability and expert evidence served in support of third party responsibility. … We confirm that we will be issuing Cross-Claims in the near future against the Roads and Traffic Authority and other tortfeasors, as has been identified in the reports of Mr Keramidas and Mr Jeffrey. Albeit that you are now armed with the experts' reports, could you please confirm that you do not intend to issue proceedings against any other tortfeasor." 17 On 7 June 2007 TL sent a letter which included in the following paragraphs: "We have sought counsel's urgent consideration of parties to be joined and the particulars of pleadings. However, the writer is on leave for one month commencing 12 June 2007, but will endeavour to ensure that the Cross-Claims are filed regardless of my absence. In order to provide some insight, we enclose a copy of the Statement of Claim in the related matter of Dennison. The construction of the driveway without culvert (which has now been rectified) will also be central to the claims for contribution." 18 On 14 September 2007 TL served a cross-claim on behalf of Allianz joining both the RTA and the Lavis brothers as cross-defendants. On 1 February 2008 Mr Rickard filed an amended statement of claim which joined as defendants the RTA and the Lavis brothers. 19 In response Allianz submitted that it should not be punished for raising a defence of inevitable accident which was reasonably open to it. In that regard, Allianz relied upon Roads and Traffic Authority of NSW & Anor v Palmer (No 2) [2005] NSWCA 140 at [35] where Giles JA said: "35 It may have been reasonable for the plaintiff in her own interests to join the RTA as a defendant, but I do not think that there was conduct which made it just that the Council, and still less Pioneer, pay the costs payable by the plaintiff to the RTA. Neither the Council nor Pioneer created any circumstances of uncertainty as to who was the proper defendant. They were not obliged to concede liability or make admissions in order to remove the RTA from contention, there being a respectable argument that the RTA was liable, and there is no reason to think that short of effective capitulation by the Council and Pioneer the plaintiff would not have maintained her claim against the RTA. In my opinion, conduct has not been shown such as to make it fair to impose on the Council and Pioneer liability for the costs of the RTA." 20 Allianz also relied upon the Bostik decision. It submitted that the facts in Bostik were almost identical to those in this case. Allianz relied upon the following statement in the joint judgment at [30]: "[30] … Although it was in Brolton's interest to have Bostik joined in the proceedings, so as to bear a proportionate share of any liability, and whilst it provided Mr Liddiard with such information that it had in its possession in respect of Bostik's role, that is not sufficient to require it to bear the costs of Mr Liddiard's claim against Bostik. The enquiry in the letter and the provision of information in respect of Bostik's role is not an inducement of a kind which was sufficient in this case to warrant making a Sanderson order. There was nothing in Brolton's conduct such as was the case in Gould v Vaggelas which made its conduct unreasonable. No Sanderson order should be made in relation to the costs of the trial." 21 As the above submissions indicate, there was no disagreement between the parties as to the correct principles to be applied. Where they disagreed was in the application of those principles to the specific facts of the case. In that regard, the analysis by the Court of Appeal in Bostik at [29] is of assistance: "[29] The requirement that a party's conduct is relevant to determining whether a Sanderson order should be made is not a requirement that the party engage in misconduct. Rather, it is whether, given its conduct, it is fair to impose such an order on it. If the only conduct in which Brolton engaged was the inquiry made in its letter of 31 October, there would be no question that that conduct was insufficient to make the Sanderson order sought by Mr Liddiard. Nor would the bringing of a cross-claim of itself necessarily be sufficient. The question in this case then is whether the voluntary provision of the statements of Mr Lynch, Mr Pearce and the investigator's report to Mr Liddiard's solicitors, together with the inquiry in the letter and the bringing of the cross-claim, was such that it is fair that Brolton be made subject to a Sanderson order. In this regard, it should be observed that the statement of Mr Pearce and the investigation report were given to Mr Liddiard's solicitors with Brolton's pre-filing defence." 22 There are differences in the facts of this case to those in Bostik which are significant. 23 The service of the Keramidas report on 24 October 2006 was not made in accordance with any requirement of the District Court Rules 1973. At that time, no proceedings had been commenced by Mr Rickard. The only reasonable inference to be drawn from the service of that report at that time, is that Allianz was seeking to persuade Mr Rickard that it had potentially a good, positive defence, i.e. inevitable accident and that there was another viable defendant, i.e. the RTA. 24 The service of the Keramidas report at that time was intended to create some uncertainty in the mind of the legal advisers of Mr Rickard as to the viability of their claim against Allianz. That would arise if it were found by the Court that the driver of the Holden sedan may not have been able to take adequate avoiding action once he became aware of the presence of water over the highway. 25 Similarly, the service of the witness statements prepared for the Coroner in November 2006, which could only be regarded as conflicting in relation to the positioning of "Water Over Road" signs by the RTA, were also intended to suggest liability on the part of that organization. As with the service of the Keramidas report, there was no obligation under the District Court Rules to serve those statements at a time when proceedings had not been commenced by Mr Rickard. 26 Thereafter, with one exception, the service of documents by TL was in accordance with the District Court Rules and the obligations of Allianz as a defendant. The exception was the service of the statement of claim by the Estate of Dennison, in which the RTA had been joined as a defendant. The service of that document was not required under the District Court Rules and could have had no other purpose than to persuade Mr Rickard to bring proceedings against the RTA. 27 The final matter which distinguishes the facts in this case from those in Bostik was the nature of the defence raised by Allianz. It was not merely a denial of negligence, which would put the plaintiff to strict proof, but it raised a positive defence of inevitable accident, which was supported by the contents of the Keramidas report. This defence, supported as it was by some evidence, gave rise to a risk that if Mr Rickard proceeded only against Allianz his claim might fail altogether. 28 Taking those matters into account, I have concluded that in relation to the claim by Mr Rickard against the RTA, the conduct of Allianz was such that it would be fair to make a Sanderson order in favour of Mr Rickard in respect of the costs of the RTA. For the above reasons, I have concluded that Allianz did actively encourage Mr Rickard to commence proceedings against the RTA and that its encouragement went further than merely serving documents and providing information in accordance with the District Court Rules. 29 The situation is otherwise in relation to the Lavis brothers. The only material which directly implicated them was the report of Mr Jeffrey. At that time proceedings had been commenced by Mr Rickard against Allianz and the service of such a report, albeit in relation to cross-claims brought by the defendant, was still required by the District Court Rules. In the case of the Lavis brothers, the factual background is indistinguishable from that considered by the Court of Appeal in Bostik. I am not persuaded that Mr Rickard is entitled to either a Sanderson or a Bullock order in respect of their costs. 30 That does not end the matter. Allianz also relied upon some discussions which apparently took place on the second and third days of the hearing, i.e. 16 - 17 June 2009 between senior counsel for the RTA and senior counsel for Mr Rickard. The affidavit evidence in support of these discussions came from the solicitor instructing senior counsel for the RTA and the solicitor instructing senior counsel for Mr Rickard. There was no evidence from either senior counsel. Neither solicitor was cross-examined on their affidavits. 31 The evidence on this issue is unsatisfactory. It was expressed in conclusory terms without there being any clear statement of precisely what offer was made and what response was received to the offer. That of itself is sufficient for me to place little weight on that evidence. 32 Even if I were satisfied that an offer had been made by the RTA to Mr Rickard to discontinue proceedings against the RTA on the basis that each party pay his or its own costs, that does not alter the conclusion which I have arrived at in relation to the making of a Sanderson order in favour of Mr Rickard in respect of his claim against the RTA. By this time the trial was well underway and apart from the view, as a result of which I expressed the effect of my observations, the position had not greatly changed as between the parties. There was still a considerable amount of lay and expert evidence which was conflicting, and which needed to be resolved in the course of the hearing. The case against the RTA remained viable. 33 Accordingly, in relation to Mr Rickard, the orders which I will make in due course are that he pay the costs of the Lavis brothers, as agreed or assessed, and that Allianz pay to the RTA those costs which Mr Rickard is ordered to pay in respect of his claim against it.

Claims for costs by Ms Dennison 34 Unlike the other plaintiffs, the Dennison matters were commenced against both Allianz and the RTA. It is agreed that it was reasonable for Ms Dennison to bring proceedings against the RTA. What is not agreed is whether there was conduct on the part of Allianz such as would make it fair to make a Bullock or Sanderson order in favour of Ms Dennison. 35 Ms Dennison submits that she is entitled to such an order firstly because Allianz not only denied liability but did so by putting forward a positive case of inevitable accident. Reliance was also placed upon the fact that a notice under s 110 of the Motor Accidents Compensation Act 1999 was served by Allianz on Ms Dennison. This required proceedings to be commenced against Allianz within three months. By letter dated 4 September 2007 TL suggested some additional particulars of negligence against the RTA which Ms Dennison might consider adding to her statement of claim. 36 The only action taken by Allianz before the issue of the statement of claim was a denial of liability in its letter of 22 August 2005 and the issuing of a s 110 notice by letter dated 13 December 2006. As Palmer (No 2) made clear, the mere denial of liability is not sufficient to justify the making of a Bullock or Sanderson order against the party making such a denial, particularly where there is evidence to support it as here. The service of a s 110 notice related solely to the claim against Allianz and can have played no part in the decision to add the RTA as a defendant. 37 The other matters relied upon by Ms Dennison occurred after the filing of the statement of claim. The pleading of a defence of inevitable accident and suggesting additional particulars of negligence, are more in line with the conduct considered by the Court of Appeal in Bostik. They do not go as far as the matters to which I have referred in Rickard. It follows that I do not consider the conduct of Allianz was sufficient to justify the making of either a Sanderson or Bullock order in favour of Ms Dennison. 38 The order which I will make in due course is that in each of her matters, Ms Dennison pay the costs of the RTA as agreed or assessed.

Costs claim by Mr Wheeler 39 The first submission on behalf of Mr Wheeler is that Allianz should pay his costs on an indemnity basis. No evidence was put forward, nor was any principle identified, which would justify the making of such an order. The general principle is that in the absence of any offer of compromise or Calderbank offer, indemnity costs should only be awarded against a party that engages in unreasonable action or misconduct (Oshlack v Richmond River Council (1998) 193 CLR 72, Harrison v Schipp [2001] NSWCA 13). No such action or misconduct has been identified and accordingly, I reject this submission. 40 In relation to Mr Wheeler's application for a Bullock or Sanderson order in respect of the RTA costs, it was agreed that it was reasonable for him to join the RTA as a defendant. As with the other plaintiffs, the issue is whether there was conduct on the part of Allianz which would make it fair that such an order be made. 41 Mr Wheeler's proceedings were initially commenced in the District Court at Liverpool with Woolworths Limited as the only defendant. 42 By letter dated 26 February 2007 TL Lawyers advised: "… We note that Woolworths Limited is the only named defendant in the proceedings. … We confirm that our client intends to pursue the Roads and Traffic Authority as a cross-defendant in the proceedings and is making further inquiries in relation to the potential involvement of further tortfeasors. We expect to be in a position to finalise the other tortfeasors from whom indemnity or contribution will be sought by the time of the pre-trial conference on 1 May 2007. We confirm that we have previously served a report of William Keramidas in this matter. If you do not have a copy of same please advise as soon as possible. As there will be a significant issue of liability in this matter, and the majority of witnesses continue to reside in the Albury region or in Victoria, we suggest that the venue of these proceedings be transferred to Albury and be heard consecutively with the proceedings brought by Jack Rickard, No 230 of 2006 in the District Court at Albury." 43 By letter dated 26 May 2007 TL Lawyers said: "… We advise that it is still our intention to join additional parties to the proceedings as cross-defendants and that we are attending to finalise our investigation. We will be in a position to finalise cross-claims in the very near future." 44 On 1 February 2008 a solicitor acting on behalf of Mr Wheeler made the following file note: "I received a voicemail message late yesterday afternoon from John at TL Lawyers. … Rickard is joining the RTA and both Lavis in proceedings. They have not received any notification from us. Limitation expires Monday." 45 By letter dated 7 April 2008 the solicitors for Mr Wheeler wrote to TL in the following terms: "You know we have commenced further proceedings in the District Court of New South Wales at Liverpool joining the RTA and the property owners as defendants. This was done on the basis of the assertions and evidence led on behalf of your client as to the negligence of these parties in their responsibility for the subject accident. Notice is given that should the claim as against the second and third defendants fail on the basis that the allegation as made by your client cannot be proven, then the plaintiff will rely upon this and other correspondence for a special costs order."

There is no evidence of any reply having been received to that letter. 46 There is no evidence as to when the report of Mr Keramidas was served on the solicitors for Mr Wheeler. In view of the fact that a copy of that report was served on Mr Rickard in October of 2006 and the statement of claim in this matter was filed on 25 January 2007 the reference to the previously served report of Mr Keramidas in the TL letter of 26 February 2007 suggests to me that the report of Mr Keramidas was served on the solicitors for Mr Wheeler at about the same time as it was served on the solicitors for Mr Rickard. Accordingly, I infer that the report of Mr Keramidas was served before the statement of claim issued. 47 I read the TL letter of 26 February 2007 as designed to encourage Mr Wheeler to bring proceedings against the RTA. I have reached that conclusion because of the statement of intention by Woolworths to cross-claim against the RTA and the reference to the report of Mr Keramidas in which he opined that the RTA was liable in negligence for the accident. The TL letter of 29 May 2007 is to similar effect, although not as explicit. 48 The file note of 1 February 2008 is important. The advice concerning Mr Rickard joining the RTA as a defendant was designed to encourage Mr Wheeler to do the same and the reference to the expiry of the limitation period was designed to exert pressure on Mr Wheeler and his solicitors to act quickly. 49 Taking those matters into account, together with the matters I referred to in relation to the application for costs by Mr Rickard, i.e. the form of the defence filed by Woolworths Limited (which was identical to that filed by Allianz), I have concluded that Mr Wheeler is entitled to a Sanderson order in his favour in respect of the RTA costs. 50 As with the Rickard matter, there was affidavit evidence from the solicitor instructing senior counsel for Woolworths to the effect that she had been told that an offer had been received by Mr Wheeler from the RTA. The offer was that the RTA would allow him to discontinue proceedings against it on the basis that each party paid his or its own costs. In the case of Mr Wheeler there was also evidence that his counsel had approached senior counsel for Woolworths and had advised that her client was still prepared to pursue his claim against the RTA provided Woolworths indemnified him as to his costs. The evidence was that despite Woolworths rejecting that proposal, Mr Wheeler had continued his proceedings against the RTA. On the basis of that evidence, it was submitted by Woolworths that it was clear that Mr Wheeler had not relied upon any inducement by Woolworths but had made his own independent decision to pursue his claim against the RTA. 51 While I accept that such an offer was put on behalf of the RTA, this does not cause me to alter or modify my decision in relation to Mr Wheeler's entitlement to a Sanderson order. As I explained in the Rickard proceedings, at this stage in the trial, there was conflicting factual and expert material which needed to be tested and there remained a respectable case against the RTA. 52 The order which I will make in due course is that Allianz is to pay to the RTA those costs which Mr Wheeler is ordered to pay in respect of his claim against it. Claim for costs by Ms Kelly 53 No claim for costs was made by Ms Kelly. The Court was advised that she would submit to the orders of the Court. In those circumstances, the order which I will make in due course is that Ms Kelly pay the costs of the RTA and the Lavis brothers as agreed or assessed.

CROSS-CLAIMS The Rickard proceedings 54 There were five cross-claims in the Rickard proceedings.

(i) The first cross-claim: Allianz cross-claimed against the RTA and Lavis brothers.

(ii) The second cross-claim: the RTA cross-claimed against Allianz.

(iii) The third cross-claim: Brian Lavis cross-claimed against Allianz.

(iv) The fourth cross-claim: John Lavis cross-claimed against Allianz.

(v) The fifth cross-claim: Brian and John Lavis cross-claimed against the RTA. 55 In relation to the first cross-claim, the plaintiff succeeded against Allianz but Allianz failed in its cross-claim against the Lavis brothers and the RTA. This cross-claim was decided on its merits. I can see no reason why the costs of the first cross-claim should not follow the event and Allianz should be ordered to pay the costs of the Lavis brothers and the RTA, as agreed or assessed. 56 The second cross-claim was not decided on its merits. Allianz received a judgment in its favour only because Mr Rickard failed against the RTA. In those circumstances, there should be no order for the costs of the second cross-claim. 57 The third and fourth cross-claims were not decided on their merits, but because Mr Rickard failed against the Lavis brothers. In those circumstances, there should be no order for the costs of the third and fourth cross-claims. 58 In relation to the fifth cross-claim, the Lavis brothers conceded that costs should follow the event and that they should pay the RTA's costs of the fifth cross-claim.

The Dennison proceedings 59 There were five cross-claims. In the 20460/2008 Dennison proceedings:

(i) The first cross-claim: Allianz cross-claimed against the RTA and the Lavis brothers.

(ii) The second cross-claim: the RTA cross-claimed against Allianz.

(iii) The third cross-claim: Brian Lavis cross-claimed against Allianz.

(iv) The fourth cross-claim: John Lavis cross-claimed against Allianz.

(v) The fifth cross-claim: Brian and John Lavis cross-claimed against the RTA. 60 The first cross-claim was decided on its merits in that Allianz's cross-claims against the Lavis brothers and the RTA failed. In those circumstances Allianz should be ordered to pay the costs of the RTA and the Lavis brothers in respect of the first cross-claim. 61 The second cross-claim was not decided on it merits. There was judgment entered in favour of Allianz because Ms Dennison failed against the RTA. In those circumstances, there should be no order as to the costs of the second cross-claim. 62 The third and fourth cross-claims were not decided on their merits. Judgment was entered in favour of Allianz because Ms Dennison failed against the Lavis brothers. In those circumstances, there should be no order as to the costs of the third and fourth cross-claims. 63 In respect of the fifth cross-claim, the Lavis brothers conceded that the usual order for costs should be made and that they should pay the RTA's costs of that cross-claim. 64 In respect of the Dennison claim 20459/2008, there were two cross-claims.

(i) The first cross-claim: Allianz cross-claimed against the RTA and Lavis brothers.

(ii) The second cross-claim: Brian and John Lavis cross-claimed against the RTA. 65 The first cross-claim was decided on its merits. Accordingly, Allianz should pay the costs of the RTA and the Lavis brothers. 66 The Lavis brothers conceded that the usual order for costs should be made and that they should pay the costs of the second cross-claim against the RTA.

The Wheeler proceedings 67 There were four cross-claims in this action.

(i) The first cross-claim: Woolworths cross-claimed against the RTA and the Lavis brothers.

(ii) The second cross-claim: the RTA cross-claimed against Woolworths.

(iii) The third cross-claim: Brian and John Lavis cross-claimed against Woolworths.

(iv) The fourth cross-claim: Brian and John Lavis cross-claimed against the RTA. 68 The first cross-claim was decided on its merits. In the circumstances, Woolworths should pay the costs of the RTA and the Lavis brothers as agreed or assessed. 69 The second cross-claim was not decided on its merits. Woolworths obtained a judgment as a result of the plaintiff failing against the RTA. In those circumstances, there should be no order as to the costs of the second cross-claim. 70 The third cross-claim was not decided on its merits. Woolworths obtained a judgment because the plaintiff failed against the Lavis brothers. In the circumstances, there should be no order as to the costs of the third cross-claim. 71 In relation to the fourth cross-claim, the Lavis brothers conceded that the usual order for costs should apply and that they should pay the RTA's costs of the fourth cross-claim.

The Kelly proceedings 72 There was one cross-claim filed in this action. This was a cross-claim by the Lavis brothers against the RTA. The Lavis brothers conceded that the usual order for costs should apply and that in respect of this cross-claim, they should pay the costs of the RTA.

ORDERS 73 The Rickard proceedings - Matter No 20300/2008

Order that Allianz Australia Insurance Limited pay the plaintiff's costs of the proceedings brought by the plaintiff against it.

Order that the plaintiff pay the costs of Brian and John Lavis in defending the proceedings brought by him against them.

Order that Allianz Australia Insurance Limited pay the Roads and Traffic Authority of NSW's (RTA) costs of defending the proceedings brought against it by the plaintiff.

Order that Allianz Australia Insurance Limited pay the costs of John and Brian Lavis and of the RTA of the first cross-claim.

In respect of the second, third and fourth cross-claims, I make no order as to costs.

Order that Brian and John Lavis pay the RTA's costs of the fifth cross-claim. 74 The Dennison proceedings - Matter No 20460/2008

Order that Allianz Australia Insurance Limited pay the plaintiff's costs of the proceedings brought by her against it.

Order that the plaintiff pay the costs of the RTA of the proceedings brought against it.

Order that Allianz Australia Insurance Limited pay the costs of the RTA and Brian and John Lavis of the first cross-claim.

In respect of the second, third and fourth cross-claims I make no order as to costs.

Order that Brian and John Lavis pay the RTA's costs of the fifth cross-claim. 75 The Dennison proceedings - Matter No 20459/2008

Order that Allianz Australia Insurance Limited pay the plaintiff's costs of the proceedings brought by her against it.

Order that the plaintiff pay the costs of the RTA of the proceedings brought by her against it.

Order that Allianz Australia Insurance Limited pay the costs of the RTA and John and Brian Lavis of the first cross-claim.

Order that Brian and John Lavis pay the RTA's costs of the second cross-claim. 76 The Wheeler proceedings - Matter No 20466/2008

Order that Woolworths Limited pay the costs of the plaintiff of the proceedings brought by him against it.

Order that Woolworths Limited pay the costs of the RTA of the proceedings brought by the plaintiff against it.

Order that Woolworths Limited pay the costs of the RTA and Brian and John Lavis of the first cross-claim.

In respect of the second and third cross-claims I make no order as to costs.

Order that Brian and John Lavis pay the costs of the RTA of the fourth cross-claim. 77 The Kelly proceedings - Matter No 20452/2008

Order that the plaintiff pay the costs of the RTA and of Brian and John Lavis of the proceedings brought by her against them.

Order that Brian and John Lavis pay the costs of the RTA of the cross-claim brought by them against it.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (64 paragraphs)

Parties

Cases Cited (6)

Cited By (1)