MS Amlin Corporate Member Limited v LU Simon Builders Pty Ltd (No 2) [2023] FCA 745

MS Amlin Corporate Member Limited v LU Simon Builders Pty Ltd (No 2) [2023] FCA 745

The affirmative answer to the Separate Question meant the amended originating application should be dismissed. The applicants were to pay the respondents' costs of the applicants' proceedings and the respondents' and cross-respondents' costs of the Separate Question because the Brokers' participation was appropriate, the Separate Question affected issues in the cross-claims against them, and they were in an opposing interest to the applicants on that issue. Broader costs of the Brokers were reserved until the cross-claims are resolved.

Jurisdiction
Australia
Judgment Date
04 July 2023
Procedural Posture
Commercial and Corporations; Commercial Contracts, Banking, Finance and Insurance / Determined on the Papers; Costs, Consequential Orders and Future Case Management Following Determination of Separate Question
Outcome
Amended originating application dismissed; applicants ordered to pay specified costs; matter stood over for case management.
Legal Topics
['costs Consequences of Separate Question' 'ancillary Orders' 'dismissal of Amended Originating Application' 'cross Claims Against Insurance Brokers' 'case Management' 'alternative Dispute Resolution']
['costs' 'civil Procedure' 'insurance' 'commercial Contracts'] ['costs Consequences of Separate Question' 'ancillary Orders' 'dismissal of Amended Originating Application' 'cross Claims Against Insurance Brokers' 'case Management' 'alternative Dispute Resolution']

Case Brief

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Procedural Posture

Commercial and Corporations; Commercial Contracts, Banking, Finance and Insurance / Determined on the Papers; Costs, Consequential Orders and Future Case Management Following Determination of Separate Question

Legal Issues

  1. 1 ['Whether the amended originating application should be dismissed following the affirmative answer to the Separate Question.' 'Whether declarations concerning the Atlantis Claims or Lacrosse Claims should be made.' "Whether the applicants should pay the respondents' costs, including costs of the Separate Question hearing." "Whether the applicants should pay the insurance brokers' costs of the Separate Question hearing." "Whether Senior Counsel's fees for the Insureds should be certified." 'What future case management or alternative dispute resolution steps should be ordered for the cross-claims.']

Ratio Decidendi

The affirmative answer to the Separate Question meant the amended originating application should be dismissed. The applicants were to pay the respondents' costs of the applicants' proceedings and the respondents' and cross-respondents' costs of the Separate Question because the Brokers' participation was appropriate, the Separate Question affected issues in the cross-claims against them, and they were in an opposing interest to the applicants on that issue. Broader costs of the Brokers were reserved until the cross-claims are resolved.

Court Disposition

Amended originating application dismissed; applicants ordered to pay specified costs; matter stood over for case management.

Orders

  • ['The amended originating application be dismissed.' "The applicants pay the costs of the respondents to the proceedings brought by the applicants, excluding any costs associated with any of the parties' cross-claims (which are reserved)." 'The applicants pay the costs of the respondents and cross-respondents of the...