Dean v Phung [2015] NSWSC 816

Dean v Phung [2015] NSWSC 816

The Plaintiff did not establish that Guild Insurance Limited, by its solicitors' letter of 5 October 2010 or by counsel's statement on 7 February 2011, represented expressly or impliedly that indemnity would continue if findings of fraud or similar misconduct were made against Dr Phung. Those communications...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
21 July 2015
Procedural Posture
Application for Costs Order Against Insurer of Insolvent Defendant Under S 98 of the Civil Procedure Act 2005 / Notices of Motion by the Plaintiff Filed 23 September 2013 and 5 March 2015
Outcome
The Plaintiff's notices of motion were dismissed and the Plaintiff was ordered to pay Guild Insurance Limited's costs of the notices of motion.
Legal Topics
['non Party Costs Order' 'insurer of Insolvent Defendant' 'professional Indemnity Policy Exclusions' 'alleged Representation as to Indemnity' 'fraud and Intentional Tort Allegations' 'civil Liability Act 2002 Limitations']
['costs' 'insurance' 'civil Procedure' 'professional Negligence'] ['non Party Costs Order' 'insurer of Insolvent Defendant' 'professional Indemnity Policy Exclusions' 'alleged Representation as to Indemnity' 'fraud and Intentional Tort Allegations' 'civil Liability Act 2002 Limitations']

Source-derived case record

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Procedural Posture

Application for Costs Order Against Insurer of Insolvent Defendant Under S 98 of the Civil Procedure Act 2005 / Notices of Motion by the Plaintiff Filed 23 September 2013 and 5 March 2015

Legal Issues

  1. 1 ["Whether Guild Insurance Limited should be ordered under s 98 of the Civil Procedure Act 2005 to pay the Plaintiff's costs of the first instance proceedings against Dr Phung." 'Whether Guild Insurance Limited, through its solicitors or counsel, represented that indemnity would not be denied if fraud or similar misconduct was established against Dr Phung.' "Whether Guild Insurance Limited conducted Dr Phung's defence in a manner that was unreasonable or improper so as to justify a non-party costs order." "Whether Guild Insurance Limited's decision to decline further indemnity was shown to be based solely on the Court of Appeal's finding of fraud or otherwise unjustified."]

Ratio Decidendi

The Plaintiff did not establish that Guild Insurance Limited, by its solicitors' letter of 5 October 2010 or by counsel's statement on 7 February 2011, represented expressly or impliedly that indemnity would continue if findings of fraud or similar misconduct were made against Dr Phung. Those communications addressed only the absence of cover for aggravated and exemplary damages and not the operation of policy exclusions dependent on factual findings. Nor was it shown that Guild Insurance fought the claim exclusively for its own interests, acted unreasonably or improperly, or declined indemnity solely because of a fraud finding. It was therefore not just to make a non-party costs order...

Court Disposition

The Plaintiff's notices of motion were dismissed and the Plaintiff was ordered to pay Guild Insurance Limited's costs of the notices of motion.

Orders

  • ["The Plaintiff's notice of motion filed 23 September 2013 be dismissed." "The Plaintiff's notice of motion filed 5 March 2015 be dismissed." "The Plaintiff pay Guild Insurance Limited's costs of the notices of motion."]