Jetopay Pty Ltd v Ocean Marine Mutual Insurance Association (Europe) OV [2000] FCA 239 (9 March 2000)

Last Updated: 9 March 2000

FEDERAL COURT OF AUSTRALIA

Jetopay Pty Ltd v Ocean Marine Mutual Insurance Association (Europe) OV [2000] FCA 239

COSTS - Indemnity costs - whether a letter constituted a Calderbank letter - time from which pre-judgment interest should run

JETOPAY PTY LIMITED v

OCEAN MARINE MUTUAL INSURANCE ASSOCIATION (EUROPE) OV & ORS

NG 1156 OF 1997

TAMBERLIN J

SYDNEY

9 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1156 OF 1997
IN ADMIRALTY

BETWEEN:	JETOPAY PTY LIMITED APPLICANT
AND:	OCEAN MARINE MUTUAL INSURANCE ASSOCIATION (EUROPE) OV FIRST RESPONDENT SEALAND INSURANCE BROKERS PTY LIMITED SECOND RESPONDENT HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LIMITED THIRD RESPONDENT HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LIMITED FIRST CROSS CLAIMANT OCEAN MARINE MUTUAL INSURANCE ASSOCIATION (EUROPE) OV CROSS DEFENDANT TO FIRST CROSS CLAIM SEALAND INSURANCE BROKERS PTY LIMITED SECOND CROSS CLAIMANT HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LIMITED CROSS DEFENDANT TO SECOND CROSS CLAIM OCEAN MARINE MUTUAL INSURANCE ASSOCIATION (EUROPE) OV THIRD CROSS CLAIMANT HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LIMITED CROSS DEFENDANT TO THIRD CROSS CLAIM
JUDGE:	TAMBERLIN J
DATE OF ORDER:	9 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. There be judgment for the Applicant against the First Respondent in the sum of $350,051.38 plus interest at the rate of $73.25 per day from 18 February 2000 to date.

2. There be judgment for the Second and Third Respondents in respect of the Applicant's claims against them.

3. The First, Second and Third Cross Claims each be dismissed.

4. The Applicant pay the Second Respondent's costs assessed on a party/party basis in respect of the period up to 5 August 1999 and on an indemnity basis in respect of the period since 5 August 1999.

5. The Applicant to pay the Third Respondent's costs of the proceedings, other than of the Third Cross Claim.

6. The First Respondent pay the Third Respondent's costs of the Third Cross Claim.

7. The First Respondent pay the costs of the Applicant, such costs to include all costs the Applicant is ordered to pay to the Second and Third Respondents pursuant to these Orders.

8. The Applicant's costs of the proceedings be assessed on a party/party basis in respect of the period up to 8 May 1998 and on an indemnity basis in respect of the period since 8 May 1998.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1156 OF 1997
IN ADMIRALTY

BETWEEN:

JETOPAY PTY LIMITED APPLICANT

AND:

OCEAN MARINE MUTUAL INSURANCE ASSOCIATION (EUROPE) OV FIRST RESPONDENT SEALAND INSURANCE BROKERS PTY LIMITED SECOND RESPONDENT HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LIMITED THIRD RESPONDENT HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LIMITED FIRST CROSS CLAIMANT OCEAN MARINE MUTUAL INSURANCE ASSOCIATION (EUROPE) OV CROSS DEFENDANT TO FIRST CROSS CLAIM SEALAND INSURANCE BROKERS PTY LIMITED SECOND CROSS CLAIMANT HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LIMITED CROSS DEFENDANT TO SECOND CROSS CLAIM OCEAN MARINE MUTUAL INSURANCE ASSOCIATION (EUROPE) OV THIRD CROSS CLAIMANT HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LIMITED CROSS DEFENDANT TO THIRD CROSS CLAIM

JUDGE:	TAMBERLIN J
DATE:	9 MARCH 2000
PLACE:	SYDNEY

REASONS FOR ORDERS

1 In this matter I delivered reasons for judgment on 17 December 1999. At that time I did not make any orders but invited submissions from the parties as to the terms of appropriate orders and to that end required Draft Short Minutes to be filed.

2 The parties have now filed Draft Short Minutes and there is a dispute as to three matters. I will briefly give my conclusions in the contested matters.

3 In relation to Order 1 in the Draft filed on behalf of the applicant ("Jetopay") and dated 18 February 2000, a dispute has arisen as to whether interest on the damages awarded against the first respondent ("OMM") should accrue from a date fixed as being one month from the date of the claim by Jetopay on the third respondent ("HP") or from the expiry of one month from 5 September 1997, the date on which OMM says it actually became aware of the claim. The order as framed in the Draft Short Minutes filed by Jetopay calculates interest as from the earlier date. In my view this is the correct and appropriate form of the order having regard to my finding that HP was an intermediary agent for OMM.

4 The second matter in contest concerns the costs of the second respondent ("Sealand"). On the order proposed by Jetopay, Order 4, the costs of Sealand are to be assessed on a party to party basis in respect of the period up to 5 August 1999 and on an indemnity basis in respect of the period thereafter. Sealand contends for an earlier date for the assessment on the indemnity basis. The reason for this is said to be that a letter dtaed 12 August 1998 sent by the solicitors for Sealand to Jetopay was in effect a Calderbank offer. However on a fair reading this letter does no more than assert that Sealand has a strong case and that the proceedings should therefore be discontinued. It is no more than a suggestion (by no means uncommon in litigation) by one party that the proceedings be discontinued by the other because their case is not sound. This does not provide any proper ground for the award of costs on an indemnity basis. Moreover, in the first paragraph this letter suggests mediation as an alternative to discontinuance. I am informed that a mediation took place but was unsuccessful. In these circumstances I do not see any reason for making any order other than that set out in Order 4 as proposed by Jetopay.

5 The final matter concerns the costs of HP in relation to Jetopay's unsuccessful action against it. Jetopay failed against HP and therefore should pay the costs of HP, excluding of course the costs incurred by HP in relation to the third cross claim brought against it by OMM. I further consider that it is appropriate that OMM pay the costs of HP in respect of that unsuccessful third cross claim. In addition, I am persuaded that OMM should pay the costs of Jetopay, including all costs which Jetopay is ordered to pay to Sealands and HP pursuant to the previous orders.

6 Accordingly, the orders I make are as set out in the form of Orders attached.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 9 March 2000

Counsel for the Applicant:	G Nell
Solicitor for the Applicant:	Michell Sillar
Counsel for the First Respondent:	I Davis
Solicitor for the First Respondent:	Ebsworth & Ebsworth
Counsel for the Second Respondent:	F Cosaro
Solicitor for the Second Respondent:	Minter Ellison
Counsel for the Third Respondent:	M K Minehan
Solicitor for the Third Respondent:	McCabes
Date of Hearing:	18 February 2000
Date of Judgment:	9 March 2000