Miskovic v Stryke Corporation Pty Ltd trading as KSS Security (No 2) [2010] NSWSC 1495

Miskovic v Stryke Corporation Pty Ltd trading as KSS Security (No 2) [2010] NSWSC 1495

Clause 3(c) was clear and unambiguous: because the proceedings included an alleged liability of a kind indemnified by the policy and the costs were incurred with the Insurer's written consent, all costs and expenses incurred by KSS in connection with defending the proceedings were indemnified, including costs of defending the Trade Practices Act claim. The cross-claim was also connected with the defence of the proceedings and therefore subject to the indemnity. The earlier orders on the cross-claim and costs were therefore inappropriate and had to be set aside and replaced.

Jurisdiction
Australia
Judgment Date
22 December 2010
Procedural Posture
Contract Indemnity and Costs Dispute on Cross Claim in Employment Related Personal Injury Proceedings / Consequential Orders After Earlier Judgment Dismissing the Plaintiff's Proceedings
Outcome
Orders (ii), (iv) and (v) made on 19 April 2010 were set aside; the cross-defendant was ordered to pay all costs and expenses incurred in or in connection with the proceedings, less any amount received from the plaintiff under the costs order; proceedings otherwise dismissed.
Legal Topics
['construction of Insurance Policy' 'indemnity for Costs and Expenses' 'defence Costs in Proceedings Including Negligence and Trade Practices Act Claims' 'cross Claim Connected With Original Proceedings' 'consequential Orders']
['contract' 'insurance' 'civil Procedure' 'costs' 'personal Injury'] ['construction of Insurance Policy' 'indemnity for Costs and Expenses' 'defence Costs in Proceedings Including Negligence and Trade Practices Act Claims' 'cross Claim Connected With Original Proceedings' 'consequential Orders']

Case Brief

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Procedural Posture

Contract Indemnity and Costs Dispute on Cross Claim in Employment Related Personal Injury Proceedings / Consequential Orders After Earlier Judgment Dismissing the Plaintiff's Proceedings

Legal Issues

  1. 1 ['Whether clause 3(c) of the insurance contract required the cross-defendant to indemnify KSS for costs and expenses incurred in defending the proceedings, including the Trade Practices Act claim.' 'Whether the prior orders on the cross-claim and costs should be set aside and replaced.' 'Whether the cross-claim was itself in connection with the defence of legal proceedings in which an indemnified liability was alleged.']

Ratio Decidendi

Clause 3(c) was clear and unambiguous: because the proceedings included an alleged liability of a kind indemnified by the policy and the costs were incurred with the Insurer's written consent, all costs and expenses incurred by KSS in connection with defending the proceedings were indemnified, including costs of defending the Trade Practices Act claim. The cross-claim was also connected with the defence of the proceedings and therefore subject to the indemnity. The earlier orders on the cross-claim and costs were therefore inappropriate and had to be set aside and replaced.

Court Disposition

Orders (ii), (iv) and (v) made on 19 April 2010 were set aside; the cross-defendant was ordered to pay all costs and expenses incurred in or in connection with the proceedings, less any amount received from the plaintiff under the costs order; proceedings otherwise dismissed.

Orders

  • ['Set aside orders (ii), (iv) and (v) of the orders made, in this matter, on 19 April 2010.' 'The cross-defendant shall pay all costs and expenses incurred in or in connection with these proceedings, less any amount received by the defendant as a consequence of order (iii) below.' 'No other order for costs.'...