Horgan v HIH Casulty & General Insurance Ltd [1999] FCA 75

Horgan v HIH Casulty & General Insurance Ltd [1999] FCA 75

The proceedings against the third respondent should never have been instituted: the applicant had not clearly articulated his concerns before commencing proceedings, the third respondent was not at fault for failing to elicit them, and the proceedings made serious and unwarranted allegations of breach of trust against a professional trustee. Those features justified ordering indemnity costs notwithstanding the applicant's later discontinuance.

Jurisdiction
Australia
Judgment Date
01 February 1999
Procedural Posture
Federal Court Civil Proceeding Concerning Costs After Discontinuance / Application as to Whether the Applicant Should Pay the Third Respondent's Costs on the Usual Party and Party Basis or on an Indemnity Basis After Discontinuance Against the Third Respondent
Outcome
Applicant ordered to pay the third respondent's costs up to and including 15 January 1999 on an indemnity basis; parties to be heard further as to the costs of the proceeding on 1 February 1999.
Legal Topics
['indemnity Costs' 'discontinuance' 'misconceived Proceedings' 'breach of Trust Allegation' 'superannuation Entitlements']
['civil Procedure' 'costs' 'trusts' 'superannuation'] ['indemnity Costs' 'discontinuance' 'misconceived Proceedings' 'breach of Trust Allegation' 'superannuation Entitlements']

Case Brief

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Procedural Posture

Federal Court Civil Proceeding Concerning Costs After Discontinuance / Application as to Whether the Applicant Should Pay the Third Respondent's Costs on the Usual Party and Party Basis or on an Indemnity Basis After Discontinuance Against the Third Respondent

Legal Issues

  1. 1 ["Whether the applicant should be required to pay the third respondent's costs on a party and party basis or on an indemnity basis." 'Whether the proceedings against the third respondent were misconceived and involved allegations which ought never to have been made.' 'Whether the pleaded or purported allegation of breach of trust against a professional trustee justified indemnity costs.' "Whether the third respondent's representative was at fault for failing to give reassurances before proceedings were instituted."]

Ratio Decidendi

The proceedings against the third respondent should never have been instituted: the applicant had not clearly articulated his concerns before commencing proceedings, the third respondent was not at fault for failing to elicit them, and the proceedings made serious and unwarranted allegations of breach of trust against a professional trustee. Those features justified ordering indemnity costs notwithstanding the applicant's later discontinuance.

Court Disposition

Applicant ordered to pay the third respondent's costs up to and including 15 January 1999 on an indemnity basis; parties to be heard further as to the costs of the proceeding on 1 February 1999.

Orders

  • ["The applicant pay the third respondent's costs of the proceeding up to and including 15 January 1999 on an indemnity basis." "The Court will hear the parties further in relation to the costs of today's proceeding."]