Kriengsak & Anor v Parke Davis & Anor [2003] NSWLC 18

Kriengsak & Anor v Parke Davis & Anor [2003] NSWLC 18

The NRMA was the real party pursuing the commercial litigation, but after 2 August 2000 it and its solicitors were on notice that Mr Kriengsak was not willing to lend his authority to proceedings in his name, and no evidence showed that authority, ratification, or an order compelling authority was obtained. The NRMA was also on notice from 30 March 2001 that, in identical circumstances, the Local Court had held it had no right of subrogation, yet the proceedings continued. It was therefore appropriate for the NRMA, rather than the nominal plaintiffs, to pay the defendants' costs on the indemnity basis from commencement; however, absent evidence of mala fides, unprofessional conduct,...

Jurisdiction
Australia
Judgment Date
26 September 2003
Procedural Posture
Civil Proceeding in the Small Claims Division Arising From a Motor Vehicle Collision / Notice of Motion for Indemnity Costs After the Plaintiffs' Claim Was Dismissed and Verdict Entered for the Defendants
Outcome
The costs motion succeeded against the NRMA; indemnity costs were ordered from the commencement of proceedings, but no costs order was made against the solicitors.
Legal Topics
['irregular Commencement and Continuance of Proceedings' 'non Party Costs Orders' "solicitors' Costs Liability" 'subrogation' "insured's Refusal to Lend Name to Proceedings"]
['civil Procedure' 'costs' 'insurance'] ['irregular Commencement and Continuance of Proceedings' 'non Party Costs Orders' "solicitors' Costs Liability" 'subrogation' "insured's Refusal to Lend Name to Proceedings"]

Case Brief

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Procedural Posture

Civil Proceeding in the Small Claims Division Arising From a Motor Vehicle Collision / Notice of Motion for Indemnity Costs After the Plaintiffs' Claim Was Dismissed and Verdict Entered for the Defendants

Legal Issues

  1. 1 ["Whether the plaintiffs' solicitors, the NRMA, or both should pay the defendants' costs on the indemnity basis." "Whether the proceedings were an abuse of process because the solicitors purported to act in the plaintiffs' names without proper authority or retainer." "Whether the NRMA had a right of subrogation in respect of the car hire cost and authority to proceed in the insureds' names." 'Whether a costs order should be made against the solicitors or against the NRMA as the real party bringing the action.']

Ratio Decidendi

The NRMA was the real party pursuing the commercial litigation, but after 2 August 2000 it and its solicitors were on notice that Mr Kriengsak was not willing to lend his authority to proceedings in his name, and no evidence showed that authority, ratification, or an order compelling authority was obtained. The NRMA was also on notice from 30 March 2001 that, in identical circumstances, the Local Court had held it had no right of subrogation, yet the proceedings continued. It was therefore appropriate for the NRMA, rather than the nominal plaintiffs, to pay the defendants' costs on the indemnity basis from commencement; however, absent evidence of mala fides, unprofessional conduct,...

Court Disposition

The costs motion succeeded against the NRMA; indemnity costs were ordered from the commencement of proceedings, but no costs order was made against the solicitors.

Orders

  • ['Costs will follow the event.' "The NRMA is to pay the defendants' cost in an amount agreed within 28 days or assessed on the indemnity basis from the commencement of the proceedings, including all costs reserved following interlocutory applications."]