DSHE Holdings Ltd (receivers and managers appointed) (in liq) v Abboud; National Australia Bank Limited v Abboud (No 2) [2017] NSWSC 665

DSHE Holdings Ltd (receivers and managers appointed) (in liq) v Abboud; National Australia Bank Limited v Abboud (No 2) [2017] NSWSC 665

Because the leave issue arose and was determined at the outset of proceedings, there was no shown prior warning by the plaintiffs that the insurers should agree on common representation, the insurers had not yet confirmed their cover positions, they could not know whether their interests were identical, and they faced very substantial litigation if leave was granted, it was not unreasonable for some insurers to retain separate representation; the plaintiffs must therefore pay the costs of each insurer in the usual way.

Jurisdiction
Australia
Judgment Date
26 May 2017
Procedural Posture
Costs in Equity Commercial List Proceedings Following an Unsuccessful Application for Leave Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw) Against D&o Insurers / On the Papers; Determination of Whether Plaintiffs Should Pay Each Insurer's Costs or Only One Set of Costs
Outcome
Plaintiffs to pay the costs of each insurer defendant; the question of indemnity costs for Allianz was reserved for later consideration.
Legal Topics
['multiple Separately Represented Defendants' 'one Set of Costs' 'leave Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw)' 'd&o Insurers' 'excess Insurance Layers']
['costs' 'insurance' 'equity Commercial List'] ['multiple Separately Represented Defendants' 'one Set of Costs' 'leave Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw)' 'd&o Insurers' 'excess Insurance Layers']

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Procedural Posture

Costs in Equity Commercial List Proceedings Following an Unsuccessful Application for Leave Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw) Against D&o Insurers / On the Papers; Determination of Whether Plaintiffs Should Pay Each Insurer's Costs or Only One Set of Costs

Legal Issues

  1. 1 ['Whether the plaintiffs should pay the costs of each D&O insurer or only one set of costs in respect of the insurers generally.' 'Whether it was unreasonable for some insurers to retain separate representation for the application for leave under the LRMP Act.']

Ratio Decidendi

Because the leave issue arose and was determined at the outset of proceedings, there was no shown prior warning by the plaintiffs that the insurers should agree on common representation, the insurers had not yet confirmed their cover positions, they could not know whether their interests were identical, and they faced very substantial litigation if leave was granted, it was not unreasonable for some insurers to retain separate representation; the plaintiffs must therefore pay the costs of each insurer in the usual way.

Court Disposition

Plaintiffs to pay the costs of each insurer defendant; the question of indemnity costs for Allianz was reserved for later consideration.

Orders

  • ['The plaintiffs pay the costs of each of the insurers in the usual way.']