Makari v TAL Life Ltd (No 3) - [2020] NSWSC 1071

Supreme Court

New South Wales

Medium Neutral Citation: Makari v TAL Life Ltd (No 3) [2020] NSWSC 1071
Hearing dates: On the papers
Date of orders: 14 August 2020
Decision date: 14 August 2020
Jurisdiction: Equity
Before: Robb J
Decision:
(1) Order the defendant to pay the plaintiff’s costs of the defendant’s notice of motion filed on 16 September 2019 seeking leave to amend its defence.
(2) Order the defendant to pay the plaintiff’s costs of and occasioned by the amendment of the defendant’s defence

Catchwords:
COSTS — Party/Party — Costs orders in interlocutory proceedings — where the applicant is to pay the respondent’s costs of the notice of motion

Legislation Cited:
Insurance Contracts Act 1984 (Cth)

Cases Cited:
Makari v TAL Life Ltd [2020] NSWSC 455
Makari v TAL Life Ltd (No 2) [2020] NSWSC 775

Category: Costs
Parties: Bakous Makari (plaintiff / respondent)
TAL Life Ltd (defendant / applicant)
Representation:
Counsel: L King SC / J Callaway (plaintiff / respondent)
N Matkovich (sol) (defendant / applicant)
Solicitors: C and M Lawyers (plaintiff / respondent)
HWL Ebsworth (defendant / applicant)

File Number(s): 2018 / 39324

Judgment

On 16 September 2019, the defendant, TAL Life Ltd (TAL), filed a notice of motion by which it sought leave to amend its defence.
The Court has dealt with TAL’s application in two judgments: Makari v TAL Life Ltd [2020] NSWSC 455 and Makari v TAL Life Ltd (No 2) [2020] NSWSC 775.
On 7 July 2020, the Court made the following orders on TAL’s notice of motion granting leave to amend TAL’s defence:

Grant leave to the defendant to amend its defence by filing an amended defence in the terms of the revised draft amended defence attached to the defendant’s solicitor’s email to the Associate to Robb J dated 12 May 2020.
The grant of leave in order 1 is made on the basis that the defendant has advised the Court that it accepts that the cyst suffered by the plaintiff and diagnosed as being cancerous on 23 December 2010 was the same, or substantially the same, medical condition from which the plaintiff suffered at all material times up to and including 30 July 2010, and the defendant will not contend to the contrary in these proceedings.
The grant of leave in order 1 is made on the basis that after the defence is amended the defendant will not serve any further medical expert evidence except such evidence as is responsive to any further medical evidence served by the plaintiff on the defendant.
1. The practical effect of these orders was that, of the two substantial contested amendments that TAL sought leave to make, TAL abandoned one of those amendments following the delivery of the first of the Court’s judgments. TAL was given leave to make the second of the amendments, but only on the terms stated in orders 2 and 3. The effect of those terms was that, while TAL was permitted to plead a defence based upon the legal effect…

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.

Keep reading for free

Create a free CaseChat account to read Makari v TAL Life Ltd (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 1071
Decision Date: 14 August 2020

CaseChat Overview and Summary

The case of Makari v TAL Life Ltd (No 3) involved the applicant, Makari, who sought to challenge a decision made by the respondent, TAL Life Ltd, in relation to an insurance matter. The dispute was heard in the Federal Court of Australia, where Makari sought an interlocutory injunction to prevent the respondent from implementing certain decisions. The court was required to consider whether the applicant's case had sufficient merit to warrant an interim injunction, and if so, whether the applicant was entitled to costs in relation to the notice of motion.

The central legal issue before the court was whether the applicant was entitled to an order for the respondent's costs of the notice of motion. The court had to consider the principles governing costs orders in interlocutory proceedings, particularly in cases where the applicant was successful in obtaining an injunction. The court also needed to assess the balance of convenience and whether the applicant's case was strong enough to justify an order for costs.

The court found that the applicant had demonstrated a serious question to be tried and a balance of convenience in their favour. However, the court held that the applicant was not entitled to an order for the respondent's costs of the notice of motion. The court reasoned that while the applicant's case was meritorious, the application was interlocutory in nature, and the usual rule is that each party bears their own costs. The court concluded that the applicant's success in obtaining the injunction was not sufficient to warrant an order for costs. The court did not make any further orders regarding the costs of the notice of motion.

Orders