Coshott v Schmierer [2002] NSWSC 1098

Coshott v Schmierer [2002] NSWSC 1098

On the evidence, Baramul was not insured under the relevant policy and no contractual right existed for CGU to conduct the defence in its name. Accordingly, no costs were incurred by Baramul or properly on its behalf, and CGU as a volunteer has no entitlement to claim costs. The proceedings on the costs assessment must be permanently stayed.

Jurisdiction
Australia
Judgment Date
20 November 2002
Procedural Posture
Claim by Summons to Stay Proceedings on an Assessment of Costs / Judgment After Hearing on Summons
Outcome
Proceedings on costs assessment permanently stayed; defendant to pay costs.
Legal Topics
['solicitors Retainer' 'defence Conducted by Insurer' 'insurance Policy Coverage for Costs' 'costs Assessment Proceedings' 'permanent Stay of Assessment']
['insurance Law' 'civil Procedure' 'costs'] ['solicitors Retainer' 'defence Conducted by Insurer' 'insurance Policy Coverage for Costs' 'costs Assessment Proceedings' 'permanent Stay of Assessment']

Case Brief

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Procedural Posture

Claim by Summons to Stay Proceedings on an Assessment of Costs / Judgment After Hearing on Summons

Legal Issues

  1. 1 ['Whether the defendant company (Baramul) was insured under the relevant insurance policy and entitled to have costs assessed against the plaintiff' 'Whether the insurer (CGU) had a contractual right to conduct proceedings in the name of the defendant.' 'Whether any costs were incurred by the defendant company for which indemnity of costs order is required.']

Ratio Decidendi

On the evidence, Baramul was not insured under the relevant policy and no contractual right existed for CGU to conduct the defence in its name. Accordingly, no costs were incurred by Baramul or properly on its behalf, and CGU as a volunteer has no entitlement to claim costs. The proceedings on the costs assessment must be permanently stayed.

Court Disposition

Proceedings on costs assessment permanently stayed; defendant to pay costs.

Orders

  • ['That proceedings on costs assessment No. 91919 of 2000 be permanently stayed.' 'The defendant pay the costs of those proceedings to date and the costs of these proceedings other than subject to earlier order.']