Rathie v ING Life Ltd - [2003] QSC 429

SUPREME COURT OF QUEENSLAND

CITATION:

Rathie v ING Life Ltd [2003] QSC 429

PARTIES:

DAVID STEWART RATHIE
(plaintiff/respondent)
v
ING LIFE LIMITED ACN 009 657 176 (formerly known as Mercantile Mutual Life Insurance Company)
(defendant/applicant)
v
NSP BUCK BROKING PTY LTD ACN 064 012 264
(third party/respondent)

FILE NO/S:

S10141 of 1999

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

19 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2003

JUDGE:

Mullins J

ORDER:

1. The defendant pay the third party’s costs of the third party proceeding to be assessed on a standard basis.

2. As between the plaintiff and the defendant, the defendant bear its own costs of the third party proceeding.

CATCHWORDS:

PROCEDURE - COSTS –where defendant granted leave to discontinue third party proceeding – where defendant sought order that plaintiff indemnify the defendant for the third party’s costs of the third party proceeding and its costs of the third party proceeding on the standard basis – costs order in circumstances not solely determined by deciding whether reasonable for defendant to bring third party proceeding in light of plaintiff’s claims - where defendant issued third party proceeding without leave of the court and before plaintiff had opportunity to indicate attitude to the proceeding – where plaintiff then amended statement of claim to abandon the allegations upon which the third party claim was based – where issue raised in third party proceeding not one agitated as between plaintiff and defendant –– appropriate for the defendant to bear the costs of the third party proceeding

UCPR r 194, r 304, r 307, r 683

R v Gold Coast City Council, ex parte Raysun Pty Ltd [1971] QWN 13
Gold Coast Bakeries (Qld) Pty Ltd v Heat & Control Pty Ltd [1992] 1 QdR 162
Leaver v Golsby [1964-5] NSWR 1833
Paron v Fry (No 2) [1990] 1 QdR 550
Petavrakis v Hirst & Co & Anor [2001] QSC 224
Thomas v Times Book Co Ltd [1966] 1 WLR 911

COUNSEL:

B D O’Donnell QC for the plaintiff/respondent
H B Fraser QC and J B Sweeney for the defendant/ applicant
R F King-Scott for the third party/respondent

SOLICITORS:

McCullough Robertson for the plaintiff/respondent
Hillhouse Burrough McKeown for the defendant/applicant
Biggs & Biggs as town agents for Colin Biggers & Paisley for the third party/respondent

MULLINS J: By application filed on 18 September 2003 the defendant sought leave under r 304 of the UCPR to discontinue the proceeding against the third party. That order was not opposed by either the plaintiff or the third party and was made at the hearing of the application on 9 October 2003. The defendant also sought an order that the plaintiff indemnify the defendant for the third party’s costs of the third party proceeding and an order that the plaintiff pay the defendant its costs of the third party proceeding, assessed on the standard basis. It was submitted on behalf of the plaintiff that the defendant should bear the costs of the third party proceeding…

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 Rathie v ING Life Ltd

Details

AGLC: Rathie v ING Life Ltd [2003] QSC 429
Case: [2003] QSC 429
Decision Date: 19 December 2003

CaseChat Overview and Summary

The case of Rathie v ING Life Ltd involved a dispute where the plaintiff, Rathie, sought costs from the defendant, ING Life Ltd, following the discontinuation of a third party proceeding. The plaintiff argued that the defendant should indemnify him for the costs of the third party proceeding as well as its own costs associated with that proceeding, which were to be assessed on a standard basis. The dispute was heard in the relevant court, which was required to decide whether the defendant should bear the costs of the third party proceeding.

The primary legal issue before the court was whether it was appropriate for the defendant to be ordered to indemnify the plaintiff for the costs of the third party proceeding and its own costs, given that the defendant had initiated the third party proceeding without leave of the court and before the plaintiff had a chance to indicate their stance on the proceeding. The court also had to consider whether the issue raised in the third party proceeding was one that was relevant to the dispute between the plaintiff and the defendant.

The court found that the costs order should not be based solely on whether it was reasonable for the defendant to bring the third party proceeding in light of the plaintiff’s claims. The court emphasised that the defendant had issued the third party proceeding without the court's leave and before the plaintiff had the opportunity to express their position on the proceeding. Additionally, the plaintiff had subsequently amended their statement of claim to abandon the allegations upon which the third party claim was based. Given these circumstances, the court concluded that it was appropriate for the defendant to bear the costs of the third party proceeding, both for the third party and for itself.

The court ordered that the defendant pay the third party’s costs of the third party proceeding, to be assessed on a standard basis, and that as between the plaintiff and the defendant, the defendant bear its own costs of the third party proceeding.

Orders

Orders of the court

1. The defendant pay the third party’s costs of the third party proceeding to be assessed on a standard basis.

2. As between the plaintiff and the defendant, the defendant bear its own costs of the third party proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rathie v ING Life Ltd [2003] QSC 429
PARTIES:	DAVID STEWART RATHIE (plaintiff/respondent) v ING LIFE LIMITED ACN 009 657 176 (formerly known as Mercantile Mutual Life Insurance Company) (defendant/applicant) v NSP BUCK BROKING PTY LTD ACN 064 012 264 (third party/respondent)
FILE NO/S:	S10141 of 1999
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	19 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	9 October 2003
JUDGE:	Mullins J
ORDER:	1. The defendant pay the third party’s costs of the third party proceeding to be assessed on a standard basis. 2. As between the plaintiff and the defendant, the defendant bear its own costs of the third party proceeding.
CATCHWORDS:	PROCEDURE - COSTS –where defendant granted leave to discontinue third party proceeding – where defendant sought order that plaintiff indemnify the defendant for the third party’s costs of the third party proceeding and its costs of the third party proceeding on the standard basis – costs order in circumstances not solely determined by deciding whether reasonable for defendant to bring third party proceeding in light of plaintiff’s claims - where defendant issued third party proceeding without leave of the court and before plaintiff had opportunity to indicate attitude to the proceeding – where plaintiff then amended statement of claim to abandon the allegations upon which the third party claim was based – where issue raised in third party proceeding not one agitated as between plaintiff and defendant –– appropriate for the defendant to bear the costs of the third party proceeding UCPR r 194, r 304, r 307, r 683 R v Gold Coast City Council, ex parte Raysun Pty Ltd [1971] QWN 13 Gold Coast Bakeries (Qld) Pty Ltd v Heat & Control Pty Ltd [1992] 1 QdR 162 Leaver v Golsby [1964-5] NSWR 1833 Paron v Fry (No 2) [1990] 1 QdR 550 Petavrakis v Hirst & Co & Anor [2001] QSC 224 Thomas v Times Book Co Ltd [1966] 1 WLR 911
COUNSEL:	B D O’Donnell QC for the plaintiff/respondent H B Fraser QC and J B Sweeney for the defendant/ applicant R F King-Scott for the third party/respondent
SOLICITORS:	McCullough Robertson for the plaintiff/respondent Hillhouse Burrough McKeown for the defendant/applicant Biggs & Biggs as town agents for Colin Biggers & Paisley for the third party/respondent