Gulliver v Insurers Guarantee Fund - NEM General Insurance Association Limited (in liquidation) as Insurer of C A Freestone Pty Limited and Insurers' Guarantee Fund - NEM General Insurance Association Limited (In Liquidation) as Insurer of A McBurney and Co Pty Limited (In liquidation) and NZI Insurance Australia Limited [2005] NSWDDT 47

Gulliver v Insurers Guarantee Fund - NEM General Insurance Association Limited (in liquidation) as Insurer of C A Freestone Pty Limited and Insurers' Guarantee Fund - NEM General Insurance Association Limited (In Liquidation) as Insurer of A McBurney and Co Pty Limited (In liquidation) and NZI Insurance Australia Limited [2005] NSWDDT 47

The leave to discontinue is granted, but due to the plaintiff's choice to discontinue after a lengthy engagement of defendants, the plaintiff must pay the defendants' costs. To accede to the plaintiff's request for an order excusing costs would be to improperly favour one class of litigant without lawful authority.

Parties
Plaintiff: John Gulliver; First Defendant: Insurers Guarantee Fund - NEM General Insurance Association Limited (in liquidation) as Insurer of C A Freestone Pty Limited; Second Defendant: Insurers' Guarantee Fund - NEM General Insurance Association Limited (in liquidation) as Insurer of A McBurney and Co Pty Limited (In liquidation); Third Defendant: NZI Insurance Australia Limited
Jurisdiction
Australia
Judgment Date
19 September 2005
Procedural Posture
Miscellaneous Matters / Hearing of Application for Leave to Discontinue and Costs Order
Outcome
Leave granted to discontinue; plaintiff ordered to pay defendants' costs; hearing date vacated.
Legal Topics
Discontinuance of Proceedings, Costs
Civil Procedure Discontinuance of Proceedings Costs

Case Brief

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Parties

John Gulliver

Plaintiff

Insurers Guarantee Fund - NEM General Insurance Association Limited (in liquidation) as Insurer of C A Freestone Pty Limited

First Defendant

Insurers' Guarantee Fund - NEM General Insurance Association Limited (in liquidation) as Insurer of A McBurney and Co Pty Limited (In liquidation)

Second Defendant

NZI Insurance Australia Limited

Third Defendant

Procedural Posture

Miscellaneous Matters / Hearing of Application for Leave to Discontinue and Costs Order

Legal Issues

  1. 1 Whether to grant leave to the plaintiff to discontinue the proceedings
  2. 2 Whether the plaintiff should be ordered to pay the defendants' costs upon discontinuance

Ratio Decidendi

The leave to discontinue is granted, but due to the plaintiff's choice to discontinue after a lengthy engagement of defendants, the plaintiff must pay the defendants' costs. To accede to the plaintiff's request for an order excusing costs would be to improperly favour one class of litigant without lawful authority.

Court Disposition

Leave granted to discontinue; plaintiff ordered to pay defendants' costs; hearing date vacated.

Orders

  • Leave to the plaintiff to discontinue the proceedings is granted.
  • The plaintiff is ordered to pay the defendants' costs.