Morse v Riley (No 4) [2014] NSWSC 299

Morse v Riley (No 4) [2014] NSWSC 299

Where an institutional defendant possesses a fatal legal point and does not bring it to the plaintiffs' attention expeditiously in urgent interlocutory proceedings, and the other side surrenders in consequence, no order as to costs may be appropriate rather than awarding costs to the respondent.

Jurisdiction
Australia
Judgment Date
19 March 2014
Procedural Posture
Interlocutory Applications / Ex Tempore Judgment on Notice of Motion and Costs Orders
Outcome
Notice of Motion dismissed; no order as to costs of the motion; other orders regarding cross-claim and liberty to apply made.
Legal Topics
['costs' 'professional Indemnity Insurance' 'notice of Motion' 'law Reform (miscellaneous Provisions) Act 1946 (nsw) S 6' 'claims Made Policies']
['common Law' 'insurance Law'] ['costs' 'professional Indemnity Insurance' 'notice of Motion' 'law Reform (miscellaneous Provisions) Act 1946 (nsw) S 6' 'claims Made Policies']

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Procedural Posture

Interlocutory Applications / Ex Tempore Judgment on Notice of Motion and Costs Orders

Legal Issues

  1. 1 ['Whether leave should be granted under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to join insurer' "Whether insurer's 'claims made' policy precludes engagement of s 6(1)" "Appropriate order for costs where motion is surrendered after 'killer point' raised"]

Ratio Decidendi

Where an institutional defendant possesses a fatal legal point and does not bring it to the plaintiffs' attention expeditiously in urgent interlocutory proceedings, and the other side surrenders in consequence, no order as to costs may be appropriate rather than awarding costs to the respondent.

Court Disposition

Notice of Motion dismissed; no order as to costs of the motion; other orders regarding cross-claim and liberty to apply made.

Orders

  • ['Order that prayers 1 and 2 of the Notice of Motion filed 28 January 2014 be dismissed.' 'The order made by Sackar J on 29 January 2014 (that no judgment is to be entered on the Cross Claim until further order of the Court) is vacated.' 'Judgment is to be entered in favour of the Cross Defendant on the Cross...