Moussa v Camden Council (No.4) - [2022] NSWSC 1422

Supreme Court

New South Wales

Medium Neutral Citation: Moussa v Camden Council (No.4) [2022] NSWSC 1422
Hearing dates: 25 August 2022
Date of orders: 25 August 2022
Decision date: 25 August 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
See [24]

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Reasonableness of the conduct of the parties — Complete capitulation by respondent one day before hearing — Motion not proceeded on — Costs ordered against respondent

Legislation Cited:
Civil Liability (Third Party Claims Against Insurers) Act 2017

Cases Cited:
Franpina Developments Pty Ltd v John Anthony Arena Pty Ltd [2022] NSWSC 57

Texts Cited:
Not applicable

Category: Procedural rulings
Parties: Danny Moussa (P/A)
Camden Council (D1)
Cornish Group Spring Farm Pty Ltd (D2)
SMEC Testing Services Pty Ltd (In Liq) (D3)
Liberty Mutual Insurance Company (R)
Representation:
Counsel:
D Priestley SC / J Burnett (P/A)
R Oldfield (D1)
M Hall (D2)
P Gaffney (R)
Solicitors:
Mayweathers (P/A)
McCulloch & Buggy (D1)
Marsdens Law Group (D2)
Wotton + Kearney (D3/R)

File Number(s): 2020/359004
Publication restriction: Not applicable

EX TEMPORE Judgment

This is an application for costs by the plaintiff with respect to the finalisation of his Motion which was filed on 24 June 2022 in the class action proceedings 2020/00359004.
The proceedings were commenced against three defendants. One of those, SMEC Testing Services Pty Ltd (In Liq) (“SMEC”) is now - and has been for some years - in liquidation. Leave to proceed against that party was granted by the Court. No appearance has been filed for SMEC, and an issue arose as to whether that company held insurance coverage with respect to the class action proceedings.
I note, by way of background, that there are other proceedings on foot between Cornish Group Spring Farm Pty Ltd (“Cornish Group”) as plaintiff and SMEC. In those proceedings, SMEC appears. It has appointed the same solicitors to act in that matter as act for the insurer involved in this Notice of Motion. To an extent, I am prepared to infer that some indemnity has been extended to SMEC with respect to the claim made by Cornish Group.

Notice of Motion

On 24 June 2022, the plaintiff filed a Notice of Motion in which he sought the following orders:

The plaintiff be granted leave, pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017, to bring proceedings pursuant to s 4 of that act against Liberty Mutual Insurance Company trading in Australia as Liberty Specialty Markets Australia with respect to the liability of the third defendant asserted in these proceedings.

The plaintiff be granted leave to file its proposed further amended statement of claim in the form annexed.

Liberty Mutual Insurance Company pay the costs of and incidental to the motion if it opposes the making of order 1.

The Motion was listed for hearing today before me. This morning I was informed by the plaintiff that it was no longer necessary to…

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 Moussa v Camden Council (No.4) 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: [2022] NSWSC 1422
Decision Date: 25 August 2022

CaseChat Overview and Summary

In the case of Moussa v Camden Council (No.4), the plaintiff sought a determination regarding costs in proceedings against the defendant, Camden Council. The plaintiff, Moussa, had previously been involved in multiple legal disputes with the Council, with this case focusing on the issue of costs following the conclusion of the litigation. The case was heard in the Supreme Court of New South Wales. The primary dispute centred on whether the plaintiff was entitled to an order for costs against the defendant, given that the defendant had completely capitulated on the day before the hearing was to proceed.

The legal issues before the court included whether the conduct of the parties warranted an exception to the general rule that costs follow the event. Specifically, the court had to consider whether the complete capitulation of the respondent on the eve of the hearing justified an order for costs against the respondent. The court also needed to determine the reasonableness of the conduct of both parties throughout the litigation process.

In delivering the judgment, the court found that the respondent's complete capitulation on the day before the hearing was a significant factor that warranted an exception to the usual rule regarding costs. The court considered the respondent's conduct unreasonable, particularly given that the capitulation occurred at such a late stage. As a result, the court held that it was appropriate to make a costs order against the respondent. The court emphasised that such an order was necessary to reflect the respondent's unreasonable conduct and to uphold the integrity of the legal process.

The final orders of the court included an order that the defendant, Camden Council, pay the plaintiff's costs associated with the proceedings. This decision underscored the importance of the conduct of parties in litigation and the court's role in ensuring that costs orders reflect the circumstances of each case.

Orders