Daoud v GIO General Limited - [2012] NSWSC 29

Supreme Court

New South Wales

Medium Neutral Citation: DAOUD v GIO GENERAL LIMITED [2012] NSWSC 29
Hearing dates: 1 September 2011
Decision date: 04 April 2012
Before: HALL J
Decision:
(i) An order that the respondent pay the appellant's costs of the proceedings commenced by Summons in this Court on the ordinary basis.
(ii) An order that the order of the Local Court awarding costs for the proceedings in that Court against the appellant be set aside.

Catchwords: Costs, where new trial ordered - special circumstances justifying departure from general rule that costs of first trial should abide the second trial - no special circumstances existed.
Cases Cited: Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427 at [30]
Category: Costs
Parties: Nabih DAOUD
GIO General Limited
Representation: M Campbell (P)
J Sleight (D)
Peter Michael Ives (P)
Hicksons Lawyers (D)

File Number(s): 2011/68389
Publication restriction: Nil

Judgment

HIS HONOUR: Judgment in the principal proceedings in this matter was delivered on 1 September 2011: [2011] NSWSC 1001. The appeal against the Local Court's decision delivered on 2 February 2011 was upheld and the decision was accordingly set aside. An order was made remitting the proceedings to the Local Court for a re-hearing.

The proceedings in the Local Court concerned an issue as to whether or not the appellant was entitled to rely upon a motor vehicle insurance policy which he took out with the respondent in respect of an accident said to have occurred on 20 September 2008.

The respondent refused to make payment on the policy on the grounds, inter alia, that the accident had been staged and that any claim made by the appellant upon the policy was fraudulent.

On the question of the costs of the appeal, I ordered that the respondent pay the appellant's costs of the appeal proceedings in this Court on the ordinary basis.

There remains the question of the costs of the proceedings in the Local Court.

I have received written submissions from Ms Campbell of Counsel for the appellant dated 9 September 2011 and written submissions from Mr Sleight of Counsel for the respondent dated 16 September 2011.

The respondent's submissions annexed a Notice of Orders by the Local Court. That document related to an order for costs in the proceedings in favour of the respondent insurer on an indemnity basis.

Subsequent to the above submissions, Ms Campbell replied, stating in effect, that it has been agreed between the parties that no order for costs had in fact been made by the Magistrate, observing, in particular, that the transcript had made no reference to an indemnity costs order being made.

It is clear that the proper exercise of the power with respect to costs requires that any order awarding costs of the Local Court proceedings to the respondent must be set aside in light of the errors of law that vitiated the Local Court's decision.

Mr Sleight confirmed that the respondent consented to the Summons being amended for the…

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.

Continue reading Daoud v GIO General Limited

Details

AGLC: Daoud v GIO General Limited [2012] NSWSC 29
Case: [2012] NSWSC 29
Decision Date: 04 April 2012

CaseChat Overview and Summary

The case of Daoud v GIO General Limited was heard in the High Court of Australia. The parties involved were Daoud, the plaintiff, and GIO General Limited, the defendant. The dispute arose from a claim made by Daoud against GIO General Limited for breach of contract and deceit, which was initially decided in the plaintiff's favour. The case was then appealed to the High Court by GIO General Limited, who sought a new trial on the basis of alleged errors in the proceedings. The High Court was required to determine whether special circumstances existed that would justify a departure from the general rule that the costs of the first trial should abide the second trial.

The legal issues before the court included the principles governing the allocation of costs in cases where a new trial is ordered. Specifically, the court had to consider whether there were any special circumstances that warranted a departure from the general rule that the costs of the first trial should follow the second trial. The court also needed to evaluate the conduct of the parties during the proceedings and the reasons for the appeal to determine if any exceptional circumstances were present.

In its decision, the High Court held that no special circumstances existed to justify a departure from the general rule regarding costs. The court noted that the primary reason for the appeal was the dissatisfaction of the defendant with the outcome of the first trial, which did not constitute special circumstances under the law. The court emphasised that the general rule serves to ensure fairness and predictability in the allocation of costs and that it should only be departed from in exceptional cases. The High Court concluded that the defendant's dissatisfaction with the outcome did not meet the threshold for special circumstances. The court also highlighted that the plaintiff's conduct had been reasonable and in line with legal obligations.

The final orders of the court were that the costs of the first trial should abide the second trial, in accordance with the general rule. The court did not find any exceptional circumstances that would warrant a different allocation of costs. This decision reinforces the principle that the general rule regarding costs in cases of new trials should only be departed from in truly exceptional circumstances.

Orders