New South Wales
Court of Appeal
CITATION: Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd & Ors; Allianz Australia Insurance Limited v SST Consulting Pty Ltd & Ors; Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors; Rickard Hails Moretti Pty Ltd v SST Consulting Pty Ltd & Ors [2008] NSWCA 283 HEARING DATE(S): 30 and 31 October 2008
JUDGMENT DATE:
19 December 2008JUDGMENT OF: Giles JA at 1; Tobias JA at 2; Gyles AJA at 3 DECISION: 1. That leave be granted to Allianz to file an amended notice of appeal in the terms of the draft provided.
2. That leave to appeal be granted in each matter.
3. That all appeals be dismissed with costs.
4. That all motions be dismissed with costs.CATCHWORDS: COSTS - costs orders against non-parties - whether abuse of process by non-parties warranting order - whether non-party with commercial interest in litigation commits abuse of process by funding and/or controlling litigation brought by insolvent plaintiff without indemnifying plaintiff against adverse costs orders - whether non-party commits abuse of process by funding and assisting insolvent plaintiff to sue on ineffectively assigned causes of action - whether non-exposure of non-party to costs orders brings administration of justice into disrepute - whether security for costs regime sufficient answer to abuse of process claims - whether proceedings hopeless rendering their conduct an abuse of process - whether unreasonable refusal of Calderbank offer constituting abuse of process - whether conduct of proceedings for purpose of obtaining higher settlement sum is abuse of process – position of directors of corporate third parties - PRACTICE AND PROCEDURE - orders against third parties - costs - WORDS AND PHRASES – “abuse of process” LEGISLATION CITED: Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005
Supreme Court Act 1970
Supreme Court Rules 1970
Supreme Court Rules (Amendment No 274) 1993CATEGORY: Principal judgment CASES CITED: Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Bauhaus Pyrmont Pty Ltd (in liq), In the matter of [2006] NSWSC 879; (2006) 67 NSWLR 289
Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41; (2006) 229 CLR 386
Condliffe v Hislop [1996] 1 All ER 431
Construction, Forestry, Mining & Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574
Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39
Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134
Forest Pty Ltd v Keen Bay Pty Ltd (1991) 4 ACSR 107
Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd [2005] NSWCA 83; (2005) 63 NSWLR 203
Hamilton v Oades (1989) 166 CLR 486
Hayward v Giffard (1838) 4 M & W 194
Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 695
Knight v…
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Details
- Case
- [2008] NSWCA 283
- Decision Date
CaseChat Overview and Summary
The case of *Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd* concerned an appeal to the New South Wales Court of Appeal regarding costs orders sought against a non-party, Allianz. The primary dispute involved Rickard Constructions Pty Ltd (the plaintiff) suing Rickard Hails Moretti Pty Ltd (the defendant). The core of the appeal related to whether Allianz, a third party with a commercial interest in the litigation, had engaged in an abuse of process by funding and controlling the litigation brought by an insolvent plaintiff without indemnifying that plaintiff against adverse costs orders. Further issues included whether Allianz had committed an abuse of process by funding and assisting the plaintiff to pursue claims based on ineffectively assigned causes of action, and whether the administration of justice was brought into disrepute by Allianz's non-exposure to costs. The court also considered whether the security for costs regime adequately addressed such claims, whether the proceedings were so hopeless as to constitute an abuse of process, and whether an unreasonable refusal of a *Calderbank* offer or the conduct of proceedings for the purpose of obtaining a higher settlement sum amounted to an abuse of process.
The Court of Appeal considered whether the conduct of Allianz constituted an abuse of process, particularly in light of the plaintiff's insolvency and the nature of the assigned causes of action. The court examined the principles governing costs orders against non-parties, focusing on whether the non-party's involvement went beyond mere funding to active control and whether this control, coupled with the plaintiff's impecuniosity, created a situation where the defendant was unfairly prejudiced. The court also had to determine if the proceedings themselves were so lacking in merit that their pursuit by Allianz was inherently an abuse of the court's process, and whether the refusal of a settlement offer was a relevant factor in assessing such abuse.
The Court of Appeal granted leave to Allianz to file an amended notice of appeal and granted leave to appeal in each matter. However, all appeals were ultimately dismissed with costs, and all motions were also dismissed with costs.
The Court of Appeal considered whether the conduct of Allianz constituted an abuse of process, particularly in light of the plaintiff's insolvency and the nature of the assigned causes of action. The court examined the principles governing costs orders against non-parties, focusing on whether the non-party's involvement went beyond mere funding to active control and whether this control, coupled with the plaintiff's impecuniosity, created a situation where the defendant was unfairly prejudiced. The court also had to determine if the proceedings themselves were so lacking in merit that their pursuit by Allianz was inherently an abuse of the court's process, and whether the refusal of a settlement offer was a relevant factor in assessing such abuse.
The Court of Appeal granted leave to Allianz to file an amended notice of appeal and granted leave to appeal in each matter. However, all appeals were ultimately dismissed with costs, and all motions were also dismissed with costs.
Orders
Orders of the court
1. That leave be granted to Allianz to file an amended notice of appeal in the terms of the draft provided. 2. That leave to appeal be granted in each matter. 3. That all appeals be dismissed with costs. 4. That all motions be dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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