Hart v MetLife Insurance Limited (No 2)

The appeal concerned the costs of proceedings between the appellant, Hart, and the respondent, MetLife Insurance Limited. The dispute arose from an earlier decision of the primary judge which had remitted part of the proceedings to the Australian Financial Complaints Authority (AFCA). The parties had reached an agreement regarding the principled exercise of the costs discretion in light of this partial success. The matter came before the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was how to exercise the costs discretion in circumstances where the proceedings had been partially remitted, and the parties had agreed on the principles to be applied. Specifically, the court had to determine the appropriate orders for the costs incurred both before and after a particular date in the primary proceedings, as well as the costs of the appeal itself.

The Court of Appeal, applying the agreed principles, made orders that the costs incurred by both the appellant and the respondent in the primary proceedings prior to 31 May 2022 were to be costs in the cause. Furthermore, there were to be no orders as to the parties’ costs of the primary proceedings from 31 May 2022 to 28 September 2023, nor of the appeal, meaning each party was to bear their own costs for those periods.