OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov (No 2) [2014] NSWCATAP 52

OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov (No 2) [2014] NSWCATAP 52

It was fair to order the insurers to pay a significant proportion of the executor's costs because, in the appeal considered alone, the executor's claims were substantially stronger than the insurers' claims and there was a substantial disparity in relative strength. However, a full costs order was not appropriate because the executor instituted and maintained a weak and unmeritorious cross appeal in which the insurers' claims were substantially stronger. Taking into account the complexity and commercial nature of the proceedings, that the appeal triggered the cross appeal, and the mixed relative merits, the appropriate award was 75% of the executor's costs of the appeal proceedings.

Jurisdiction
Australia
Judgment Date
22 September 2014
Procedural Posture
Application for Costs in Appeal Proceedings / Appeal Panel; on the Papers After Dismissal of the Appeal and Cross Appeal
Outcome
Costs application allowed in part.
Legal Topics
["review of Registrar's Decision" 'stay of Tribunal Proceedings' 'appeal and Cross Appeal' 'costs Under Section 88(1 A) of the Administrative Decisions Tribunal Act 1997' "relative Strengths of Parties' Claims"]
['administrative Law' 'costs' 'civil Procedure' 'births, Deaths and Marriages Registration' 'insurance'] ["review of Registrar's Decision" 'stay of Tribunal Proceedings' 'appeal and Cross Appeal' 'costs Under Section 88(1 A) of the Administrative Decisions Tribunal Act 1997' "relative Strengths of Parties' Claims"]

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Procedural Posture

Application for Costs in Appeal Proceedings / Appeal Panel; on the Papers After Dismissal of the Appeal and Cross Appeal

Legal Issues

  1. 1 ["Whether it was fair under section 88(1A) of the Administrative Decisions Tribunal Act 1997 to order the insurers to pay the executor's costs of the appeal proceedings." "Whether the relative strengths of the parties' claims in the appeal and cross appeal supported a costs order." "What proportion of costs should be awarded given that the insurers' appeal failed but the executor's cross appeal was unmeritorious."]

Ratio Decidendi

It was fair to order the insurers to pay a significant proportion of the executor's costs because, in the appeal considered alone, the executor's claims were substantially stronger than the insurers' claims and there was a substantial disparity in relative strength. However, a full costs order was not appropriate because the executor instituted and maintained a weak and unmeritorious cross appeal in which the insurers' claims were substantially stronger. Taking into account the complexity and commercial nature of the proceedings, that the appeal triggered the cross appeal, and the mixed relative merits, the appropriate award was 75% of the executor's costs of the appeal proceedings.

Court Disposition

Costs application allowed in part.

Orders

  • ["The Appellants are to pay 75% of the Second Respondent/Cross Appellant's costs of these appeal proceedings, as agreed or assessed."]