MOS Beverages Pty Ltd v Insurance Australia Ltd trading as CGU Insurance (No 2)

MOS Beverages Pty Ltd, the applicant, sought indemnity under an Industrial Special Risks Policy held with Insurance Australia Ltd trading as CGU Insurance, the respondent. The matter was initially listed to address a separate question, but the applicant sought to vacate the first hearing and rely on an additional clause under the policy. The court was required to determine whether the applicant was entitled to all of its costs for the hearing of the separate question and whether a deduction should be made to account for the applicant applying to vacate the first hearing.

The court determined that the applicant was entitled to all of its costs for the hearing of the separate question. However, the court found that a deduction should be made to account for the applicant applying to vacate the first hearing. The court concluded that the appropriate deduction was 15% of the applicant’s costs of the proceeding to date other than on any question of quantum. The court also granted the parties leave to appeal the decision and ordered that the appeal and any cross-appeal be expedited with a view to the hearing of the appeal in the February Full Court period or as soon thereafter as a special fixture as is convenient to the parties and to the Court.

The court ordered that the respondent pay 85% of the applicant’s costs of the proceeding to date other than on any question of quantum, as agreed or assessed. The court also granted the parties leave to appeal the decision and ordered that the parties are to consult as to mutually convenient dates for the appeal and any cross-appeal and are to agree upon a consolidated electronic appeal book including written submissions in accordance with Practice Note APP2 and Special Measures Information Note (SMIN-3), to be filed by 8 February 2021. The matter was listed for case management before Chief Justice Allsop in the week commencing 15 February 2021 to fix a date for the appeal and any cross-appeal and to make any necessary directions in the proceeding and for the appeal and any cross-appeal.