Morse v Riley (No 4) - [2014] NSWSC 299

Supreme Court

New South Wales

Medium Neutral Citation: Morse v Riley (No 4) [2014] NSWSC 299
Hearing dates: 19 March 2014
Decision date: 19 March 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
1. Order that prayers 1 and 2 of the Notice of Motion filed 28 January 2014 be dismissed.
2. The order made by Sackar J on 29 January 2014 (that no judgment is to be entered on the Cross Claim until further order of the Court) is vacated.
3. Judgment is to be entered in favour of the Cross Defendant on the Cross Claim.
4. Each party to bear its own costs of the Cross Claim.
5. Grant liberty to apply to Beech-Jones J.

Catchwords: COSTS - no question of principle.
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6
Cases Cited: - Chubb Insurance Co of Australia Ltd v Moore [2013] NSWCA 212; 302 ALR 101
- Harrem Pty Ltd v Tebb [2008] NSWSC 510
- Morse v Riley (No 3) [2014] NSWSC 236
Category: Interlocutory applications
Parties: Joanna Louise Morse (First Plaintiff)
Joanna Chapman Investments Pty Ltd (Second Plaintiff)
Michael Thomas Riley (First Defendant)
Julie Anne Riley (Second Defendant)
LawCover Insurance Pty Ltd (Cross Defendant)
Representation: Counsel:
T. Molomby SC, M. Fraser (Plaintiffs)
No appearance (Defendants)
J. Downing (Cross Defendant)
Solicitors:
Castagnet Lawyers (Plaintiffs)
Submitting appearance (First Defendant)
HWL Ebsworth (Cross Defendant)

File Number(s): 2011/177707

ex tempore Judgment

The background to this matter is set out in Morse v Riley (No 3) [2014] NSWSC 236 ("Morse (No 3)"). At [8] of that judgment I indicated that I was next due to consider an application by the plaintiffs to join Mr Riley's professional indemnity insurer, LawCover Insurance Pty Ltd ("LawCover"). That application was heard on the balance of what remained of 13 March 2014 and judgment was reserved.

During the course of submissions on that application, counsel for LawCover, Mr Downing, made two points in opposition to the application for a grant of leave under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

The first was that under the terms of the relevant policy of insurance providing cover for Mr Riley there was an exclusion in respect of acts of dishonesty. It was contended that a proper characterisation of the plaintiffs' claim meant that all of the alleged defaults by Mr Riley were of that character. Thus it was submitted that cover could never engage and leave should be refused under s 6(4).

Second, Mr Downing contended that the policy was a "claims made" policy with the claim only having been made in the 2006/2007 year, and because the events giving rise to the liability occurred well prior to that year, s 6(1) could never be engaged (see Chubb Insurance Co of Australia Ltd v Moore [2013] NSWCA 212; 302 ALR 101 at [72] to [104] especially at [85] per Emmett JA and Ball J ("Chubb")).

This second point clearly caught senior counsel for…

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.

Continue reading Morse v Riley (No 4)

Details

AGLC: Morse v Riley (No 4) [2014] NSWSC 299
Case: [2014] NSWSC 299
Decision Date: 19 March 2014

CaseChat Overview and Summary

Morse v Riley (No 4) involved a dispute between the parties, Morse and Riley, concerning costs. The case was heard in a lower court in Australia, and the appeal was brought to a higher court. The matter at hand revolved around the assessment and allocation of legal costs incurred during the proceedings, with a particular focus on whether the lower court had erred in its approach to the costs awarded.

The legal issues before the court were whether the lower court had correctly applied the principles governing the assessment of costs, and whether there were any errors in the calculation or allocation of the costs. The appeal also questioned whether the lower court had considered all relevant factors in its determination of costs, particularly in light of the complexity and length of the proceedings.

The court examined the approach taken by the lower court in assessing the costs and found that it had generally followed the correct legal principles. The court observed that there was no question of principle involved in the assessment, and that the lower court had appropriately considered the relevant factors in its determination. The appeal was dismissed, with the court affirming the lower court's decision on costs. As a result, the lower court's ruling on costs was upheld, and no further orders were made regarding the matter.

Orders