DSHE Holdings Ltd (receivers and managers appointed) (in liq) v Abboud; National Australia Bank Limited v Abboud (No 2)

In the case before the court, DSHE Holdings Ltd (receivers and managers appointed) (in liq) and National Australia Bank Limited (the plaintiffs) sought leave to appeal against the decision that they were not entitled to costs against multiple insurers. The defendants, Abboud, had previously been successful in their application to set aside a judgment against them on the basis of an undisclosed insurance policy. The plaintiffs sought leave to appeal under section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to contest the decision regarding the costs. The primary legal issue was whether the plaintiffs should be required to pay each insurer's costs separately or if they should only be liable for one set of costs.

The court considered the nature of the proceedings and the statutory provisions governing costs in multiple party cases. It was noted that section 6(4) of the Act allows for an appeal against the costs order if the court considers it just to do so. The court also considered the principles of justice and fairness in determining whether the plaintiffs should bear the costs of multiple insurers. It was emphasised that the plaintiffs' decision to proceed with the litigation against the multiple insurers was a strategic choice, and they should bear the consequences of that decision. The court found that it was just for the plaintiffs to bear each insurer's costs separately, as they had chosen to litigate against multiple parties.

Consequently, the court dismissed the plaintiffs' application for leave to appeal against the costs order. It held that the plaintiffs should be liable for each insurer's costs, reflecting the principles of justice and fairness. The court's decision underscored the importance of strategic considerations in litigation and the consequences of pursuing claims against multiple defendants. The plaintiffs were thus ordered to pay each insurer's costs individually, as determined by the lower court.