Mohamed v Certain Underwriters at Lloyds - [2025] VSC 332

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2021 03580

TAREK MOHAMED	Plaintiff
v
CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY NUMBER A039511 & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	22 November 2024, 16 April 2025
DATE OF RULING:	12 June 2025
CASE MAY BE CITED AS:	Mohamed v Certain Underwriters at Lloyds & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 332

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COSTS – First defendant successful in obtaining summary judgment against the plaintiff – First defendant not the correct party to the proceeding – First defendant consented to orders that had the effect of joining it to the proceeding despite knowing it was not the correct party – Court’s discretion to order costs – Whether the first defendant’s conduct warrants the displacement of the usual costs order that the successful party is entitled to its costs of litigation.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the First Defendant	Mr C Juebner KC with Ms E Nadon	Norton White
No appearance for the Second, Third, Fourth and Fifth Defendants

HER HONOUR:

On 21 March 2025, I made orders for summary judgment in favour of the first defendant on the return of its summons filed on 27 August 2024. I also delivered my primary reasons for ruling,[1] although I reserved my decision on the question of costs. In its summons, the first defendant sought an order in respect of its costs as follows:

The Plaintiff pay the First Defendant[’]s costs of the proceeding, including the costs of and incidental to this summons (with the basis for taxation to be determined after the determination of the relief sought by paragraphs 1, alternatively 2, above).

[1]Mohamed v Certain Underwriters at Lloyds & Ors [2025] VSC 126 (‘Reasons’).

By my Reasons, I invited further submissions from the plaintiff and the first defendant on the question of costs. After these costs submissions had been filed, I listed the matter for a brief mention on 16 April 2025 to interrogate certain aspects of the first defendant’s costs submissions. By its costs submissions, the first defendant submits that, given its success on the application, it is entitled to its costs of the proceeding and of the application. It seeks payment of its costs on the standard basis.

Having considered the costs submissions, and the submissions and the evidence filed with respect to the summary judgment application, and for the reasons which follow in this ruling, I will order that the plaintiff pay the first defendant’s costs of the proceeding incurred on and after 3 August 2024 on a standard basis, to be taxed in default of agreement.

Background to, and chronology of, the first defendant’s involvement in this proceeding

The first defendant is a group of underwriters known as ‘Certain Underwriters at Lloyds subscribing to policy number A039511’. These underwriters insured Soar Aviation Pty Ltd (‘Soar Aviation’), which company, although de-registered on 7…

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: [2025] VSC 332
Decision Date: 12 June 2025

CaseChat Overview and Summary

In Mohamed v Certain Underwriters at Lloyds, the plaintiff sought to recover damages from the first defendant, which had mistakenly been joined to the proceeding. The first defendant was not the correct party to the proceeding, but it had consented to orders that had the effect of joining it to the proceeding despite knowing it was not the correct party. The plaintiff applied for an order for costs against the first defendant, arguing that its conduct warranted the displacement of the usual costs order that the successful party is entitled to its costs of litigation.

The court had to determine whether the first defendant's conduct was such that it warranted the displacement of the usual costs order. The court noted that it had discretion to order costs in any case and that the usual costs order was not an inflexible rule but a starting point that could be displaced if the conduct of the parties warranted it. The court held that the first defendant's conduct was such that it warranted the displacement of the usual costs order. The first defendant had knowingly consented to orders that had the effect of joining it to the proceeding despite knowing it was not the correct party. This conduct was vexatious and oppressive, and it was in the interests of justice to order the plaintiff to bear its own costs.

The court ordered that the plaintiff bear its own costs of the proceeding and that the first defendant pay the plaintiff's costs of the application for an order for costs. The court held that the first defendant's conduct was such that it warranted the displacement of the usual costs order. The first defendant had knowingly consented to orders that had the effect of joining it to the proceeding despite knowing it was not the correct party. This conduct was vexatious and oppressive, and it was in the interests of justice to order the plaintiff to bear its own costs. The court's discretion to order costs was not limited to cases where there had been a breach of a contractual or statutory obligation to pay costs. The court could order costs in any case where the conduct of the parties warranted it. In this case, the first defendant's conduct warranted the displacement of the usual costs order.

Orders