Harden v Willis Australia Group Services Pty Ltd; Willis Australia Group Services Pty Ltd v Harden [2021] NSWSC 1188

Harden v Willis Australia Group Services Pty Ltd; Willis Australia Group Services Pty Ltd v Harden [2021] NSWSC 1188

Mr Harden is entitled to recover costs from Willis, even though his costs were indemnified by Guy Carpenter, because the evidence established that a retainer existed and he remained under a legal liability to his solicitor; accordingly, the indemnity principle does not prevent recovery. Indemnity costs were not appropriate on the solicitation issues as Willis' claims were not found to be so unreasonable as to warrant such an order.

Parties
First Plaintiff/first Defendant: Willis Australia Group Services Pty Ltd; Second Plaintiff: Willis Reinsurance Australia Ltd; Second Defendant: Willis Reinsurance Limited; Defendant/plaintiff: Michael Harden
Jurisdiction
Australia
Judgment Date
16 September 2021
Procedural Posture
Civil / Post Judgment (costs Determination)
Outcome
Costs awarded to Mr Harden; indemnity costs claim refused; agreed declaration made.
Legal Topics
Indemnity Principle, Recovery of Costs, Third Party Payer, Party/party Costs
Costs Indemnity Principle Recovery of Costs Third Party Payer Party/party Costs

Case Brief

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Parties

Willis Australia Group Services Pty Ltd

First Plaintiff/first Defendant

Willis Reinsurance Australia Ltd

Second Plaintiff

Willis Reinsurance Limited

Second Defendant

Michael Harden

Defendant/plaintiff

Procedural Posture

Civil / Post Judgment (costs Determination)

Legal Issues

  1. 1 Whether party indemnified by third party payer can recover costs from the opposing party
  2. 2 Whether a retainer existed between Mr Harden and his solicitors
  3. 3 Appropriateness of indemnity costs in relation to issues of solicitation

Ratio Decidendi

Mr Harden is entitled to recover costs from Willis, even though his costs were indemnified by Guy Carpenter, because the evidence established that a retainer existed and he remained under a legal liability to his solicitor; accordingly, the indemnity principle does not prevent recovery. Indemnity costs were not appropriate on the solicitation issues as Willis' claims were not found to be so unreasonable as to warrant such an order.

Court Disposition

Costs awarded to Mr Harden; indemnity costs claim refused; agreed declaration made.

Orders

  • Willis Australia Group Services Pty Ltd and Willis Reinsurance Ltd pay Mr Harden's costs of the proceedings.
  • Declaration in accordance with para 1 of the proposed short minutes.