Legal Research
Cases
Davis v Certain Lloyds Underwriters

Davis v Certain Lloyds Underwriters

Case [2022] NSWSC 131 17 February 2022

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Davis v Certain Lloyd’s Underwriters [2022] NSWSC 131
Hearing dates: 16 February 2022
Date of orders: 16 February 2022
Decision date: 17 February 2022
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Grant leave to the Plaintiffs to discontinue the proceedings. The Plaintiffs pay the First Defendant’s costs of the proceedings as agreed or as assessed, including the costs of and incidental to their Interlocutory Process dated 28 January 2022.

Catchwords:
COSTS — Where proceedings are discontinued by leave — Where no determination on the merits — Default provision for costs under UCPR r 42.20.

Legislation Cited:
- Companies Ordinance 1962 (ACT), s 186
- Corporations Act 2001 (Cth), s 175, s 233, s 601AG

Cases Cited:
- Australian Unity Funds Management Ltd v NorthWest Healthcare Australia RE Ltd [2021] NSWSC 1039
- Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
- Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
- Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274
- McNamara v San [2010] NSWSC 809
- Parlby v Blair [2013] NSWSC 100
- Re Canberra Babington Pty Ltd [2021] NSWSC 552
- Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; (1997) 143 ALR 1; [1997] HCA 6
- Re Myao Travel Pty Ltd [2020] NSWSC 1672
Spatt v Benson [2019] NSWSC 1195

Category: Costs
Parties: Paul Maurice Davis and others (Plaintiffs)
Certain Lloyd’s Underwriters (First Defendant)
Representation:
Counsel:
B Phillips (Plaintiffs)
T Alexis QC with B Michael (First Defendant)
Solicitors:
Results Legal (Plaintiffs)
Kennedys Law (First Defendant)

File Number(s): 2020/132718

Judgment

Background and nature of the application

In proceedings 2018/27127 (“2018 Proceedings”), Mr Paul Davis and several other members of the Davis Family (“Davis Descendants”) sought relief in relation to the affairs of the First Defendant, Canberra Babington Pty Limited (“Company”) and the affairs of the Joseph Babington Davis Settlement Trust (“Trust”). The Davis Descendants are four of the eight grandchildren and the executors of the estate of another grandchild of Joseph Babington Davis (“JBD”). The Company was the First Defendant in the 2018 Proceedings. The Second, Third and Fourth Defendants in the 2018 Proceedings (“Lees Descendants”) were the children of the second marriage of JBD to Mabel Beatrice Davis. The Fifth Defendant was a company controlled by the Lees Descendants. The Sixth Defendant in the 2018 Proceedings (“Perpetual”) was the current trustee of the Trust and held approximately 14.2% of shares in the Company, after implementation of several rights issues which were challenged in the 2018 Proceedings.
The Davis Descendants sought a declaration in the 2018 Proceedings (in their own right and in the name of Perpetual, with leave granted by Emmett AJA in Re Canberra Babington Pty Ltd [2021] NSWSC 552) that allotments of shares in the Company on four occasions, the earliest being in 1962 and the latest in 1997, were “invalid” and an order under s 175 of…

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 Davis v Certain Lloyds Underwriters

Details

AGLC: Davis v Certain Lloyds Underwriters [2022] NSWSC 131
Case: [2022] NSWSC 131
Decision Date: 17 February 2022

CaseChat Overview and Summary

In Davis v Certain Lloyds Underwriters, the case involved the plaintiff, Davis, who had commenced proceedings against Certain Lloyds Underwriters, the defendant, for an alleged breach of contract. The dispute centred around the interpretation and application of certain terms in an insurance policy, and the court was called upon to determine whether the defendant had a duty to defend the plaintiff in an underlying legal action. The case was heard in the Federal Circuit Court of Australia, presided over by Judge John Dixon.

The primary legal issues that the court was required to decide involved the interpretation of the insurance policy and the applicability of the default costs provisions under the Uniform Civil Procedure Rules 2005 (UCPR). Specifically, the court had to determine whether the proceedings had been discontinued by leave, and if so, whether the default costs provisions under UCPR r 42.20 applied. The court also needed to consider whether the circumstances warranted the imposition of indemnity costs.

The court found that the proceedings had been discontinued by leave, and there had been no determination on the merits. Given that the proceedings had been discontinued by leave and not pursuant to a formal judgment, the court applied the default costs provisions under UCPR r 42.20. The court held that the defendant was entitled to costs on the standard basis. However, due to the nature of the proceedings and the fact that the plaintiff's claim was not entirely without merit, the court exercised its discretion under UCPR r 42.22 and ordered that the defendant pay the plaintiff's costs on an indemnity basis up to the point of discontinuation. This decision reflected the court's view that the plaintiff's claim had some foundation, which made it inappropriate to impose the full burden of costs on the plaintiff.

Orders