QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd and the persons detailed in the Schedule attached to the Appeal Notice (Civil)

[2012] WASCA 186 (S)

QBE INSURANCE (AUSTRALIA) LTD -v- LOIS NOMINEES PTY LTD and the persons detailed in the Schedule attached to the Appeal Notice (Civil) [2012] WASCA 186 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 186 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:101/2011	Heard:	ON THE PAPERS
Coram:	McLURE P NEWNES JA MURPHY JA	Delivered:	24/10/12
No of pages:	4	Judgment Part:	1 of 1
Result:	Appellants to pay respondents' costs of the appeal
Category:	B
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Parties:	QBE INSURANCE (AUSTRALIA) LTD AMERICAN HOME ASSURANCE COMPANY QBE CORPORATE LTD T/AS DA CONSTABLE SYNDICATE 386 AT LLOYDS LOIS NOMINEES PTY LTD and the persons detailed in the Schedule attached to the Appeal Notice (Civil)
Catchwords:	Practice and procedure Costs Majority decision dismissing appeal Costs follow the event
Legislation:	Nil
Case References:	QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : QBE INSURANCE (AUSTRALIA) LTD -v- LOIS NOMINEES PTY LTD and the persons detailed in the Schedule attached to the Appeal Notice (Civil) [2012] WASCA 186 (S) CORAM : McLURE P

NEWNES JA
MURPHY JA

HEARD : ON THE PAPERS DELIVERED : 24 OCTOBER 2012 FILE NO/S : CACV 101 of 2011 BETWEEN : QBE INSURANCE (AUSTRALIA) LTD

AMERICAN HOME ASSURANCE COMPANY
QBE CORPORATE LTD T/AS DA CONSTABLE SYNDICATE 386 AT LLOYDS
Appellants

AND

LOIS NOMINEES PTY LTD and the persons detailed in the Schedule attached to the Appeal Notice (Civil)
Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : BEECH J

Citation : LOIS NOMINEES PTY LTD -v- QBE INSURANCE (AUSTRALIA) LTD [2011] WASC 208

File No : CIV 1796 of 2011, CIV 2019 of 2009

Catchwords:

Practice and procedure - Costs - Majority decision dismissing appeal - Costs follow the event

Legislation:

Nil

Result:

Appellants to pay respondents' costs of the appeal

Category: B

Representation:

Counsel:

Appellants : Mr S M Davies SC & Mr A J Musikanth
Respondent : Mr J C Vaughan

Solicitors:

Appellants : Jackson McDonald
Respondent : Tottle Partners

Case(s) referred to in judgment(s):

QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186


(Page 3)

1 JUDGMENT OF THE COURT: On 26 September 2012, this court, by a majority (Newnes & Murphy JJA, McLure P dissenting), dismissed an appeal against an order of Beech J, who had refused the appellants' application for summary judgment: QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186. When judgment on the appeal was delivered, counsel for the appellants sought an opportunity to make written submissions on the costs of the appeal. It was ordered that written submissions be filed by both parties and the question of costs be determined on the papers.

2 In their written submissions, the appellants contend that the costs of the appeal should be costs in the cause of the action. They argue that such an order is ordinarily made on an unsuccessful summary judgment application and there was no reason to depart from that practice on the appeal.

3 The appellants further submit that it was relevant to the question of costs that McLure P would have allowed the appeal and that Murphy JA, while he ultimately concluded that the appeal should be dismissed, considered there was an issue as to the joinder of necessary parties. In those circumstances, it was submitted, it would not be appropriate for the appellants to be exposed immediately to the costs of the appeal but any exposure to costs should only crystallise in the event that the appellants are unsuccessful at trial.

4 The respondents' position was simple. They had been successful on the appeal and there was no reason to depart from the usual practice that costs follow the event. The respondents sought an order that the appellants pay the respondents' costs of the appeal (including any reserved costs) to be taxed.

5 There is no substance in the appellants' submissions. The practice as to costs at first instance where an application for summary judgment is refused has no application on an appeal against that decision. On such an appeal, costs will ordinarily follow the event. There is nothing in this appeal which would justify a departure from that.

6 The fact that the court was divided on the outcome of the appeal is beside the point. Nor is it to the point that Murphy JA considered there was an issue as to the joinder of relevant parties. That was not relevant to his Honour's conclusion as to the outcome of the appeal.

(Page 4)

7 The appropriate order is that the appellants pay the respondents' costs of the appeal (including any reserved costs) to be taxed. There will be an order accordingly.