Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 2) [2019] NSWCA 19

Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 2) [2019] NSWCA 19

Because Mobis Parts Australia Pty Ltd succeeded on all substantial issues arising under the Local Policy except limited issues, and because XL Insurance Company SE's success on the Acceptance of Liability and proximate cause issues did not affect the ultimate outcome, those matters did not warrant separate costs treatment. The physical loss issue was discrete and substantially significant to quantum, so allowance should be made for XL's success on that issue, together with minor quantum issues and XL's concession about the Faulty Design Exclusion. A global costs order requiring XL to pay 90% of Mobis' first instance costs on the ordinary basis was appropriate.

Jurisdiction
Australia
Judgment Date
19 February 2019
Procedural Posture
Costs and Consequential Orders in Insurance Appeal / On the Papers After Court of Appeal Reasons for Judgment
Outcome
Appeal allowed in part; cross-appeal dismissed; respondent ordered to further indemnify appellant, pay interest, and pay costs as ordered.
Legal Topics
['costs Discretion' 'costs Follow the Event' 'global Costs Order' 'appeal and Cross Appeal' 'insurance Indemnity' 'interest Under Insurance Legislation']
['costs' 'insurance'] ['costs Discretion' 'costs Follow the Event' 'global Costs Order' 'appeal and Cross Appeal' 'insurance Indemnity' 'interest Under Insurance Legislation']

Case Brief

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Procedural Posture

Costs and Consequential Orders in Insurance Appeal / On the Papers After Court of Appeal Reasons for Judgment

Legal Issues

  1. 1 ['Whether the Court should re-exercise the costs discretion for the first instance proceedings after the appeal was allowed in part.' 'Whether costs of the first instance proceedings should be ordered by reference to particular issues or by a global costs order.' "What allowance should be made for XL Insurance Company SE's success on discrete or minor issues, including the physical loss issue."]

Ratio Decidendi

Because Mobis Parts Australia Pty Ltd succeeded on all substantial issues arising under the Local Policy except limited issues, and because XL Insurance Company SE's success on the Acceptance of Liability and proximate cause issues did not affect the ultimate outcome, those matters did not warrant separate costs treatment. The physical loss issue was discrete and substantially significant to quantum, so allowance should be made for XL's success on that issue, together with minor quantum issues and XL's concession about the Faulty Design Exclusion. A global costs order requiring XL to pay 90% of Mobis' first instance costs on the ordinary basis was appropriate.

Court Disposition

Appeal allowed in part; cross-appeal dismissed; respondent ordered to further indemnify appellant, pay interest, and pay costs as ordered.

Orders

  • ['The appeal be allowed in part as to grounds 1.1, 3.1, 3.2, 4 and 5 of the Notice of Appeal filed on 9 March 2018.' 'The cross-appeal be dismissed.' 'The respondent further indemnify the appellant under the insurance policy issued by the respondent to the appellant, entitled "Property Damage & Business...