Incomlend Pte Ltd v Insurance Australia Ltd - [2024] NSWSC 1482

Supreme Court

New South Wales

Medium Neutral Citation: Incomlend Pte Ltd v Insurance Australia Ltd [2024] NSWSC 1482
Hearing dates: 8 November 2024, further written submissions received 11 November 2024
Date of orders: 21 November 2024
Decision date: 21 November 2024
Jurisdiction: Equity - Commercial List
Before: Pike J
Decision:
(1) The parties confer and provide to the chambers of Pike J by no later than 5pm on 27 November 2024 agreed orders to give effect to these reasons, including as to costs.
(2) If the parties are unable to agree orders, each party should provide to the chambers of Pike J by no later than 5pm on 27 November 2024 the orders for which they contend together with written submissions of no more than three pages, whereupon any remaining dispute will be determined on the papers.

Catchwords:
COSTS – security for costs – where proceedings are funded and plaintiffs are both resident outside of Australia – where dispute as to form and quantum of security – where plaintiff proposed deed of indemnity in favour of second and third defendants from overseas insurer – where second and third defendants seek security by payment into court – whether deed of indemnity is adequate – security for costs ordered in the form of proposed deed of indemnity – no question of principle

Legislation Cited:
Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK) s 2
Legal Profession Uniform Law Application Act 2014 (NSW) s 83(1A) and Part 7

Cases Cited:
Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2020] QSC 361
Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] QCA 198; (2021) 9 QR 141
APFC No 1 Corporation v Insurance Australia Ltd [2024] NSWSC 534
Blue Oil Energy Pty Ltd v Tan [2014] NSWCA 81
Dif III Global Co-Investment Fund, LP v BBLP LLC [2016] VSC 401
Tiaro Coal Limited (In Liq) [2018] NSWSC 746
Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd [2017] VSCA 293
Vertical Australia Pty Ltd v Air Company Vertical-TLLC [2012] NSWSC 719
Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd [2019] NSWSC 187

Texts Cited:
None

Category: Procedural rulings
Parties: Tokio Marine & Nichido Fire Insurance Co Ltd (First Applicant/Second Defendant)
BCC Trade Credit Pty Ltd (Second Applicant/Third Defendant)
Incomlend Pte Ltd (First Respondent/First Plaintiff)
Amicorp Trustees (Singapore) Limited (Second Respondent/Second Plaintiff)
Representation:
Counsel:
J Giles SC and B A O’Connor (Respondents/Plaintiffs)
A Horvath SC and A Avery-Williams (Applicants/Second and Third Defendants)
Solicitors:
Thomson Geer (Plaintiffs/Respondents)
Kennedys (Australasia) Partnership (Second and Third Defendants/Applicants)

File Number(s): 2023/00364167
Publication restriction: None

JUDGMENT

Introduction and overview

By motion filed 25 July 2024, the second defendant (Tokio Marine) and third defendant (BCC) seek the following orders:

1 Pursuant to rule 42.21 (1) of the Uniform Civil Procedure Rules 2005 (NSW) or section 1335 of the Corporations Act 2001 (Cth), within 14 days of the order the Plaintiffs provide, by payment into the Sydney…

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.

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Details

Case: [2024] NSWSC 1482
Decision Date: 21 November 2024

CaseChat Overview and Summary

Incomlend Pte Ltd, the plaintiff, initiated proceedings against Insurance Australia Ltd, the defendant, in the Federal Court of Australia. The plaintiff, an overseas corporation, sought compensation for alleged breaches of contract. The dispute centred on the form and quantum of security for costs required under the court's rules, given that the plaintiff was funded and both resident outside of Australia. The plaintiff proposed a deed of indemnity in favour of the second and third defendants from its overseas insurer, which the defendants contested. The defendants argued for security by payment into court, leading to a determination of the adequacy of the proposed deed of indemnity.

The court examined the plaintiff's application for security for costs under the Federal Court of Australia Rules. The primary issue was whether the deed of indemnity offered by the plaintiff was sufficient to meet the security for costs requirements. The court assessed the legal principles established in previous cases, particularly focusing on the nature of the security required and the adequacy of the proposed indemnity. The court also considered the circumstances of the case, including the plaintiff's funding arrangements and residency status.

After reviewing the submissions and the legal precedents, the court concluded that the proposed deed of indemnity was adequate to satisfy the security for costs requirements. The court found no principle-based objection to the form of security proposed by the plaintiff. Consequently, the court ordered that the security for costs would be in the form of the deed of indemnity provided by the plaintiff. This decision ensured that the plaintiff's application for security for costs was met in a manner consistent with the court's rules and the circumstances of the case.

No further orders were made beyond the security for costs being provided as per the deed of indemnity. The court's ruling effectively allowed the plaintiff to proceed with its claim while ensuring that the defendants were protected against potential costs liabilities.

Orders