Berkley Insurance v Magar
[2011] NSWSC 875
•05 August 2011
Supreme Court
New South Wales
Medium Neutral Citation: Berkley Insurance v Magar [2011] NSWSC 875 Hearing dates: 05/08/2011 Decision date: 05 August 2011 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Judgment for plaintiff against each defendant in the sum of $4,831,699.66 together with costs on solicitor and client basis.
Catchwords: CONTRACT - indemnity given by defendant in favour of plaintiff for loss incurred by plaintiff if guarantee called upon - claim made out by plaintiff - no appearance by defendant - default judgment. Category: Principal judgment Parties: Berkley Insurance Company (ARBN 126 559 706) (Plaintiff)
Adil Azir Magar (First Defendant)
Nabil Azir Magar (Second Defendant)Representation: Counsel:
C Douglas (Plaintiff) (Solicitor)
Solicitors:
DLA Piper Australia (Plaintiff)
File Number(s): 2010/406342
Judgment (ex tempore)
HIS HONOUR: By amended summons filed on 26 May 2011, the plaintiff sought judgment against each of the defendants, for an amount in excess of $4.6 million together with interest. It appears from the amended commercial list statement filed on the same day, that the plaintiff's claim was based on five separate guarantee undertakings issued by it for the benefit of a company known as Capita Investments Pty Ltd.
That company and each of the defendants undertook, by the term of each of the guarantees, to indemnify the plaintiff against any loss that it might incur if the guarantees were called upon. Each of the guarantees was called upon and the plaintiff has paid it out. All but one of the guarantees provides that the amount for which the defendants are liable to indemnify the plaintiff includes the plaintiff's costs, on a solicitor and client basis, incurred in connection with the guarantee and indemnity. It is clear that these are proceedings in connection with the guarantee and the indemnity.
The remaining guarantee is not quite so explicit. Nonetheless, when one looks at it, it seems to me to be sufficiently clear that the defendants, as indemnifiers, are liable to pay costs incurred by the plaintiff in connection with the guarantee and indemnity or the enforcement of the indemnity, and the language ("all losses, damages, costs, charges as liabilities and expenses") is clearly wide enough to include costs included on the solicitor and client basis.
I am satisfied that the summons and commercial list statement were served on each of the defendants in accordance with the court's orders made on 18 February 2011. I am satisfied that the amended summons and commercial list statement were served in the same fashion. I am satisfied that the notice of motion for default judgment and the affidavit in support were served in the same fashion.
The relevant forms of guarantee and indemnity have been proved and the affidavits of the plaintiffs assistant general manager Mr Piper make good the other elements of the plaintiff's claim to which I have referred, including the fact that it has paid out the guaranteed amounts.
In the circumstances, I am satisfied that it is appropriate to enter judgment in favour of the plaintiff against each of the defendants in default of the defendants' appearance and their failure to file any document by way of defence to the claim, specifically, a commercial list response.
Accordingly I direct entry of judgment in favour of the plaintiff against each of the defendants, in the sum of $4,831,699.66 inclusive of interest to today's date.
I order the defendants to pay the plaintiff's costs of the proceedings. I order that those costs be assessed on the solicitor and client basis. The exhibit is to be retained.
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Decision last updated: 23 August 2011
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