The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) [2019] NSWSC 299

The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) [2019] NSWSC 299

QBE, as the insurer of NMK, should be awarded its costs incurred as NMK's insurer from the time NMK was joined as a defendant, including before QBE was formally joined, less the costs the Owners Corporation incurred in obtaining leave to proceed against QBE. Exceptional circumstances in the Dymocks sense warrant this non-party costs order, and it is just to make the order given QBE’s actual expenditure defending proceedings on behalf of NMK.

Jurisdiction
Australia
Judgment Date
21 March 2019
Procedural Posture
Costs Proceedings / Post Discontinuance, Costs Determination
Outcome
Plaintiff ordered to pay costs of eighth defendant, including costs incurred as insurer of seventh defendant less the costs incurred by plaintiff in obtaining leave to proceed against the eighth defendant.
Legal Topics
['non Party Costs Order' 'exceptional Circumstances' 'discretion in Costs' 'gross Sum Costs' 'indemnity Costs' 'voluntary Deregistration']
['costs'] ['non Party Costs Order' 'exceptional Circumstances' 'discretion in Costs' 'gross Sum Costs' 'indemnity Costs' 'voluntary Deregistration']

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Procedural Posture

Costs Proceedings / Post Discontinuance, Costs Determination

Legal Issues

  1. 1 ['Whether insurer (QBE) should be awarded costs incurred prior to its joinder as a defendant' 'Whether costs should be paid for the period NMK was deregistered' 'Whether a gross sum costs order or indemnity costs order should be made']

Ratio Decidendi

QBE, as the insurer of NMK, should be awarded its costs incurred as NMK's insurer from the time NMK was joined as a defendant, including before QBE was formally joined, less the costs the Owners Corporation incurred in obtaining leave to proceed against QBE. Exceptional circumstances in the Dymocks sense warrant this non-party costs order, and it is just to make the order given QBE’s actual expenditure defending proceedings on behalf of NMK.

Court Disposition

Plaintiff ordered to pay costs of eighth defendant, including costs incurred as insurer of seventh defendant less the costs incurred by plaintiff in obtaining leave to proceed against the eighth defendant.

Orders

  • ["Plaintiff pays the costs of QBE, including costs QBE incurred as insurer of NMK (seventh defendant), less the plaintiff's costs incurred in obtaining leave to proceed against QBE." 'Liberty to apply by 5pm on 25 March 2019 as to precise form of order.']