David Dusko Tanevski v Trenwick International Limited & Ors [2003] NSWCA 374

David Dusko Tanevski v Trenwick International Limited & Ors [2003] NSWCA 374

The first respondent was primarily liable to indemnify the appellants and should pay their relevant costs on an indemnity basis, including defence costs not unreasonably incurred, because those costs would have been avoided had the first respondent provided the indemnity it was required to provide. The second respondent was not blameless because its misleading and deceptive Certificate of Currency contributed to the appellants' difficulties, so it should also pay the appellants' costs relating to the second and fourth cross-claims, but only on a party/party or reasonable costs basis. The issue of any damages payable by the second respondent for breach of the Trade Practices Act 1974 (Cth)...

Jurisdiction
Australia
Judgment Date
18 December 2003
Procedural Posture
Appeal Concerning Insurance Indemnity, Misleading or Deceptive Conduct, Damages and Costs / Supplementary Judgment Determining Outstanding Damages and Costs Issues After Substantive Appeal Judgment
Outcome
Appeal allowed; declaration of contravention of s 52 of the Trade Practices Act 1974 (Cth) made; judgment entered for the appellants against the first respondent; costs and indemnity orders made; issue of damages against the second respondent reserved.
Legal Topics
['indemnity Costs' 'party/party Costs' 'insurance Indemnity' 'misleading or Deceptive Conduct' 'certificate of Currency' 'cross Claims']
['costs' 'insurance' 'trade Practices'] ['indemnity Costs' 'party/party Costs' 'insurance Indemnity' 'misleading or Deceptive Conduct' 'certificate of Currency' 'cross Claims']

Case Brief

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Procedural Posture

Appeal Concerning Insurance Indemnity, Misleading or Deceptive Conduct, Damages and Costs / Supplementary Judgment Determining Outstanding Damages and Costs Issues After Substantive Appeal Judgment

Legal Issues

  1. 1 ["Whether the first respondent should indemnify the appellants for costs and disbursements incurred in defending the plaintiff's claim." "How the appellants' costs of the appeal and proceedings at first instance relating to the second and fourth cross-claims should be allocated between the first and second respondents." 'Whether costs against the first respondent and second respondent should be ordered on an indemnity basis or a party/party basis.' 'Whether damages against the second respondent for breach of s 52 of the Trade Practices Act 1974 (Cth) should be reserved for determination by the District Court of NSW if loss is later shown.']

Ratio Decidendi

The first respondent was primarily liable to indemnify the appellants and should pay their relevant costs on an indemnity basis, including defence costs not unreasonably incurred, because those costs would have been avoided had the first respondent provided the indemnity it was required to provide. The second respondent was not blameless because its misleading and deceptive Certificate of Currency contributed to the appellants' difficulties, so it should also pay the appellants' costs relating to the second and fourth cross-claims, but only on a party/party or reasonable costs basis. The issue of any damages payable by the second respondent for breach of the Trade Practices Act 1974 (Cth)...

Court Disposition

Appeal allowed; declaration of contravention of s 52 of the Trade Practices Act 1974 (Cth) made; judgment entered for the appellants against the first respondent; costs and indemnity orders made; issue of damages against the second respondent reserved.

Orders

  • ['Declare that by issuing the Certificate of Currency dated 22 April 1998 to the appellants, the Second Respondent contravened s 52 of the Trade Practices Act 1974 (Cth).' 'Appeal allowed.' 'Order 3 made by Sorby DCJ on 12 September 2002 set aside.' 'Judgment for the appellants against the first respondent in the...