DWA Insurance Pty Ltd v Community Broker Network Pty Ltd (No 3) [2020] NSWSC 1052

DWA Insurance Pty Ltd v Community Broker Network Pty Ltd (No 3) [2020] NSWSC 1052

DWA failed to provide full and frank disclosure in its ex parte application for interlocutory orders; had disclosure been complete, orders would not have issued ex parte. As a result, CBN is entitled to indemnity costs for the interlocutory application, subject to assessment excluding failed applications to duty judges. Gross sum costs order cannot be made fairly on present material; costs not payable forthwith. Legal costs claimed are not recoverable as damages under the usual undertaking as to damages.

Jurisdiction
Australia
Judgment Date
11 August 2020
Procedural Posture
Interlocutory Application for Injunction / Costs Decision Following Discharge of Interlocutory Orders
Outcome
Plaintiff to pay defendant's interlocutory application costs on indemnity basis (subject to assessment); defendant’s claims for gross sum order, costs payable forthwith, and enforcement of damages undertaking for costs shortfall dismissed; plaintiff pays half of defendant’s costs of the costs application on ordinary...
Legal Topics
['party/party Costs' 'interlocutory Proceedings' 'ex Parte Disclosure' 'indemnity Costs' 'gross Sum Costs Order' 'timing of Costs' "court's Discretion" 'undertaking as to Damages']
['costs' 'equity'] ['party/party Costs' 'interlocutory Proceedings' 'ex Parte Disclosure' 'indemnity Costs' 'gross Sum Costs Order' 'timing of Costs' "court's Discretion" 'undertaking as to Damages']

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Procedural Posture

Interlocutory Application for Injunction / Costs Decision Following Discharge of Interlocutory Orders

Legal Issues

  1. 1 ["What order for costs should follow from the plaintiff's failed interlocutory application?" 'Should costs be assessed on the indemnity or ordinary basis?' 'Is a gross sum costs order appropriate?' 'Should costs be payable forthwith or at the conclusion of proceedings?' "Is the defendant entitled to claim shortfall in legal costs as damages under the plaintiff's undertaking as to damages?"]

Ratio Decidendi

DWA failed to provide full and frank disclosure in its ex parte application for interlocutory orders; had disclosure been complete, orders would not have issued ex parte. As a result, CBN is entitled to indemnity costs for the interlocutory application, subject to assessment excluding failed applications to duty judges. Gross sum costs order cannot be made fairly on present material; costs not payable forthwith. Legal costs claimed are not recoverable as damages under the usual undertaking as to damages.

Court Disposition

Plaintiff to pay defendant's interlocutory application costs on indemnity basis (subject to assessment); defendant’s claims for gross sum order, costs payable forthwith, and enforcement of damages undertaking for costs shortfall dismissed; plaintiff pays half of defendant’s costs of the costs application on ordinary...

Orders

  • ["Plaintiff to pay defendant's costs of plaintiff's interlocutory application (prayers 4 and 5 of the summons), subject to exclusion for applications to Ward CJ in Eq and Rein J (each party bears own costs for those)." 'Costs payable on indemnity basis.' 'Calculation per UCPR r 42.5.' "Defendant's gross sum claim...