Booksan Pty Ltd, Jaymay Constructions Pty Ltd v Wehbe, Elmir & Others; GIO General Ltd and GIO Workers Compensation (NSW) Ltd v Wehbe, Elmir & Others (No 2) [2006] NSWCA 103

Booksan Pty Ltd, Jaymay Constructions Pty Ltd v Wehbe, Elmir & Others; GIO General Ltd and GIO Workers Compensation (NSW) Ltd v Wehbe, Elmir & Others (No 2) [2006] NSWCA 103

The Court applied a broad approach to costs given the complexity and shifting positions during the consolidated appeals. As Booksan and Jaymay succeeded only on the contributory negligence issue (constituting about 20% of the appeals), Mr Wehbe and Mr Elmir are ordered to pay 20% of their costs accordingly. Jaymay succeeded against GIO General on indemnity and is awarded costs against GIO General for that appeal segment. GIO General and GIOWC are ordered to pay Booksan's costs in specified insurance appeals which they lost. The connection between indemnity insurance and party costs is regarded as collateral; cost orders should not shift ultimate liability due to existence of insurance....

Jurisdiction
Australia
Judgment Date
25 May 2006
Procedural Posture
Appeal / Post Judgment (costs Determination)
Outcome
Costs orders made as set out; some issues remitted to the trial judge; certificates under the Suitors Fund Act 1951 (NSW) granted if otherwise entitled.
Legal Topics
['costs' 'contributory Negligence' 'indemnity' 'insurance Policy Interpretation']
['civil Procedure' 'insurance Law' 'tort Law'] ['costs' 'contributory Negligence' 'indemnity' 'insurance Policy Interpretation']

Case Brief

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Procedural Posture

Appeal / Post Judgment (costs Determination)

Legal Issues

  1. 1 ['Appropriate apportionment of costs following mixed success on appeal involving liability and insurance indemnity issues' 'Whether insurance issues are collateral to party costs and should influence cost orders' 'Whether successful contributory negligence arguments justify partial recoupment of costs from respondents' 'Whether trial costs orders should be altered following appellate success on indemnity issues']

Ratio Decidendi

The Court applied a broad approach to costs given the complexity and shifting positions during the consolidated appeals. As Booksan and Jaymay succeeded only on the contributory negligence issue (constituting about 20% of the appeals), Mr Wehbe and Mr Elmir are ordered to pay 20% of their costs accordingly. Jaymay succeeded against GIO General on indemnity and is awarded costs against GIO General for that appeal segment. GIO General and GIOWC are ordered to pay Booksan's costs in specified insurance appeals which they lost. The connection between indemnity insurance and party costs is regarded as collateral; cost orders should not shift ultimate liability due to existence of insurance....

Court Disposition

Costs orders made as set out; some issues remitted to the trial judge; certificates under the Suitors Fund Act 1951 (NSW) granted if otherwise entitled.

Orders

  • ['Mr Wehbe and Mr Elmir pay 20 per cent of the costs of Booksan and Jaymay for first part of appeals CA 40308/05 and CA 40118/05.' 'Mr Wehbe and Mr Elmir to have a certificate under the Suitors Fund Act 1951 (NSW), if otherwise entitled.' 'GIO General to pay the costs of Jaymay in respect of the second part of...