Nonox Australia v Certain Underwriters at Lloyds Subscribing to Contract No CV0263CGL [2014] NSWSC 222

Nonox Australia v Certain Underwriters at Lloyds Subscribing to Contract No CV0263CGL [2014] NSWSC 222

Separate determination was refused because the Court was not satisfied that there was a clear dividing line between liability and quantum, not satisfied that there would be no overlap of witnesses, and not satisfied that the course would in the long run be quicker or cheaper. The existence of claims against both insurers and the broker, a consequential loss claim, the Singapore claim, and possible appellate complications made separation inappropriate under r 28.2 when considered with s 56.

Jurisdiction
Australia
Judgment Date
07 March 2014
Procedural Posture
Equity Division Commercial List Proceeding; Procedural Notice of Motion / Application for Separate Determination of Quantification Issues and Orders Concerning Security for Costs
Outcome
The plaintiff's application for separate determination was dismissed. Security for costs was ordered in favour of the first and second defendants, with stay consequences for non-payment.
Legal Topics
['separate Determination of Issues' 'security for Costs' 'indemnity Under Insurance Policy' 'broker Liability' 'just, Quick and Cheap Resolution of Proceedings']
['practice and Procedure' 'civil Procedure' 'insurance' 'costs'] ['separate Determination of Issues' 'security for Costs' 'indemnity Under Insurance Policy' 'broker Liability' 'just, Quick and Cheap Resolution of Proceedings']

Case Brief

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Procedural Posture

Equity Division Commercial List Proceeding; Procedural Notice of Motion / Application for Separate Determination of Quantification Issues and Orders Concerning Security for Costs

Legal Issues

  1. 1 ['Whether issues of quantification of loss should be deferred for separate and subsequent determination under Uniform Civil Procedure Rules 2005 (NSW), r 28.2.' 'Whether there was a clear dividing line between liability issues and quantum issues.' 'Whether there was a real risk of overlap of witnesses between liability and quantum issues.' 'Whether separate determination would achieve a quicker and cheaper resolution consistently with Civil Procedure Act 2005 (NSW) s 56.' 'What security for costs the plaintiff should provide to the first and second defendants and by what instalments.']

Ratio Decidendi

Separate determination was refused because the Court was not satisfied that there was a clear dividing line between liability and quantum, not satisfied that there would be no overlap of witnesses, and not satisfied that the course would in the long run be quicker or cheaper. The existence of claims against both insurers and the broker, a consequential loss claim, the Singapore claim, and possible appellate complications made separation inappropriate under r 28.2 when considered with s 56.

Court Disposition

The plaintiff's application for separate determination was dismissed. Security for costs was ordered in favour of the first and second defendants, with stay consequences for non-payment.

Orders

  • ["The plaintiff's notice of motion filed on 28 February 2014 is dismissed." "The plaintiff provide security for the first and second defendants' costs of the proceeding in the sum of $245,000." "Security be provided either as the parties may agree or otherwise by cash or bank guarantee by instalments of $45,000...