Carroll v United Super Pty Ltd (No. 2) - [2018] NSWSC 1101

Supreme Court

New South Wales

Medium Neutral Citation: Carroll v United Super Pty Ltd (No. 2) [2018] NSWSC 1101
Hearing dates: 4 July 2018
Date of orders: 18 July 2018
Decision date: 18 July 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
The defendant is ordered to pay 80 per cent of the plaintiff’s costs of these proceedings on the ordinary basis.

Catchwords: COSTS – whether costs should follow the event – Uniform Civil Procedure Rules, rr 20.26 and 42.14 – whether two offers of compromise found a basis for awarding indemnity costs in the plaintiff’s favour – whether the plaintiff should be deprived of the whole or part of his costs by reason of his conduct of the litigation – what costs order should be made in the circumstances.
Legislation Cited: Insurance Contracts Act 1984 (Cth), s 57
Superannuation Industry (Supervision) Act 1993 (Cth), s 52(7)(d)
Uniform Civil Procedure Rules 2005, rr 20.26, 42.14(2)
Cases Cited: Ayran v Nguyen [2001] NSWCA 5
Carroll v United Super Pty Ltd [2018] NSWSC 403
Degmam Pty Ltd (in liq) v Wright (No. 2) [1983] 2 NSWLR 354
GR Vaughan (Holdings) Pty Ltd v Vogt [2006] NSWCA 263
Leach v The Nominal Defendant (QBE insurance (Australia) Ltd) (No. 2) [2014] NSWCA 391
Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344
Oshlack v Richmond River Council (1998) 193 CLR 72
Category: Costs
Parties: Plaintiff: Nicholas Carroll
First Defendant: United Super Pty Ltd (ABN 46 006 261 623)
Second Defendant: Hannover Life Re of Australasia Ltd (ABN 37 062 395 484)
Representation:
Counsel:
Plaintiff: A. Coombes
Defendants: B. Nolan
Solicitor
Plaintiffs: Stephen Paul Firth, Firths Compensation Lawyers
First and Second Defendants: Michael Iacuzzi, TurksLegal

File Number(s): 2014/276267
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. The Court gave its first judgment on 4 April 2018: Carroll v United Super Pty Ltd [2018] NSWSC 403. The Court’s first judgment set aside decisions of a superannuation trustee (the first defendant) and an insurer (the second defendant) in forming an opinion that the plaintiff was not totally and permanently disabled under an insurance policy which the second defendant issued to the first defendant.
The parties could not agree upon costs. They asked the Court to determine that question. This second judgment deals with the issue of costs. This judgment does not repeat the background to the proceedings but should be read with the Court’s first judgment. Events, matters and persons are referred to in both judgments in the same way.
Evidence and submissions on the issues of costs were heard in a short supplementary hearing on 4 July 2018.
Mr A. Coombes of counsel continued to appear for Mr Carroll, instructed by Mr S. Firth of Firths Compensation Lawyers. Ms B. Nolan of counsel continued to appear for the first and second defendants respectively, the Trustee and Hannover, instructed by Mr M. Iacuzzi of Turks Legal.
The parties were initially at issue about the period for which interest…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Carroll v United Super Pty Ltd (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 1101
Decision Date: 18 July 2018

CaseChat Overview and Summary

The case of Carroll v United Super Pty Ltd (No. 2) involved a dispute between the plaintiff, Mr Carroll, and the defendant, United Super Pty Ltd, which was the trustee of the United Trades & General Workers Union Superannuation Fund. The central issue was the determination of costs following the conclusion of the proceedings, particularly focusing on whether costs should follow the event and whether certain offers of compromise could serve as a basis for awarding indemnity costs in the plaintiff's favour. Additionally, the court had to consider whether the plaintiff's conduct during the litigation warranted a deprivation of his costs, either in whole or in part.

The legal issues before the court included the interpretation and application of the Uniform Civil Procedure Rules, specifically rules 20.26 and 42.14, which pertain to the general principles of costs in the Supreme Court. The court needed to assess the two offers of compromise made by the defendant and determine if they constituted a basis for awarding indemnity costs to the plaintiff. Furthermore, the court was required to evaluate the plaintiff's conduct to decide if it warranted any costs being awarded against him.

In its reasoning, the court examined the Uniform Civil Procedure Rules and found that the general principle is that costs should follow the event, meaning the party who loses the case typically pays the other party's costs. However, the court considered whether there were exceptional circumstances that justified deviating from this principle. The court also analysed the two offers of compromise, determining that they did not provide a sufficient basis for awarding indemnity costs. Regarding the plaintiff's conduct, the court concluded that while there were some procedural irregularities, they did not warrant depriving the plaintiff of his costs in their entirety. Ultimately, the court ordered that the defendant pay the plaintiff's costs, subject to certain adjustments for the plaintiff's conduct.

The final orders included that United Super Pty Ltd was to pay the plaintiff's costs of the proceeding, with certain deductions to reflect the plaintiff's conduct during the litigation. This decision balanced the principle of costs following the event with the need to consider the specific circumstances of the case, including the offers of compromise and the plaintiff's procedural conduct.

Orders