Murgolo v AAI Ltd t/as AAMI (No 2) [2019] NSWSC 1567

Murgolo v AAI Ltd t/as AAMI (No 2) [2019] NSWSC 1567

Although the proceedings against AAI had been summarily dismissed as out of time, the plaintiff's conduct did not rise to the level warranting indemnity costs. AAI's pre-commencement correspondence was not a settlement offer and merely asserted that the claim was out of time. The proceedings raised a novel legal point, the Court had not found abuse of process, and the plaintiff had made concessions limiting the motion. The appropriate order was therefore that the plaintiff pay AAI's costs of the proceedings, including the motion filed 23 October 2018, on an ordinary basis.

Jurisdiction
Australia
Judgment Date
15 November 2019
Procedural Posture
Costs Application Following Summary Dismissal / On the Papers Application to Vary Costs Order
Outcome
Indemnity costs refused; alternative order for ordinary costs made by varying Order 2 of the orders made on 18 April 2019.
Legal Topics
['indemnity Costs' 'ordinary Costs' 'summary Dismissal' 'statute Barred Proceedings' 'no Real Prospects of Success' 'abuse of Process' 'res Judicata']
['civil Procedure' 'costs' 'limitation of Actions'] ['indemnity Costs' 'ordinary Costs' 'summary Dismissal' 'statute Barred Proceedings' 'no Real Prospects of Success' 'abuse of Process' 'res Judicata']

Case Brief

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Procedural Posture

Costs Application Following Summary Dismissal / On the Papers Application to Vary Costs Order

Legal Issues

  1. 1 ["Whether the first defendant's costs of the proceedings, motion and hearing should be paid on an indemnity basis." 'Whether it should have been apparent to the plaintiff that the proceedings were statute-barred and had no real prospects of success.' "Whether the plaintiff's conduct in bringing the proceedings exhibited delinquency or unreasonableness warranting indemnity costs."]

Ratio Decidendi

Although the proceedings against AAI had been summarily dismissed as out of time, the plaintiff's conduct did not rise to the level warranting indemnity costs. AAI's pre-commencement correspondence was not a settlement offer and merely asserted that the claim was out of time. The proceedings raised a novel legal point, the Court had not found abuse of process, and the plaintiff had made concessions limiting the motion. The appropriate order was therefore that the plaintiff pay AAI's costs of the proceedings, including the motion filed 23 October 2018, on an ordinary basis.

Court Disposition

Indemnity costs refused; alternative order for ordinary costs made by varying Order 2 of the orders made on 18 April 2019.

Orders

  • ["Order 2 of the six orders made on 18 April 2019 is varied as follows: The plaintiff is to the pay the first defendant's costs of these proceedings including the first defendant's motion filed 23 October 2018, on an ordinary basis."]