Sanhueza v AAMI Limited - [2010] NSWSC 1374

CITATION: Sanhueza v AAMI Limited [2010] NSWSC 1374

HEARING DATE(S): 6 October 2010
(Written submissions closed 22 October 2010)

JUDGMENT DATE :
6 December 2010

JUDGMENT OF: Smart AJ

DECISION: Motion to vary costs orders dismissed with costs.
Plaintiff to pay costs of AAMI Ltd of motion.

CATCHWORDS: ADMINISTRATIVE LAW - Orders made on 16 July 2010 as to costs - leave to move within 14 days to vary orders as to costs - no motion filed within time - informal telephone application made on 2 August 2010 - motion not filed until 25 August 2010 - not appropriate to extend time, even if power to do so - initial costs order correct in any event

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133
Hancock v Arnold (No 2) [2009] NSWCA 19
John Alexander’s Club Pty Limited v White City Tennis Club Limited [2010] HCA 19; (2010) 84 ALJR 446
Malouf v Prince (No 2) [2010] NSWCA 51
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336

PARTIES:
Jorge Sanhueza (Plaintiff)
AAMI Limited (First Defendant)

FILE NUMBER(S): SC 2009/298034

COUNSEL: JB Simpkins SC / L Robison (Plaintiff)
MA Robinson (First Defendant)

SOLICITORS: Leitch Hasson & Dent (Plaintiff)
Lee & Lyons (First Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Smart AJ

Monday 6 December 2010

2009/298034 Jorge Sanhueza v AAMI Limited & Ors
JUDGMENT

1 HIS HONOUR: This is a contest as to the costs orders that should have been made when judgment was delivered on 16 July 2010 and whether the Court can and should now vary the orders made on that day.

2 On 16 July 2010 I made the following costs order (paragraph 129, sub-paragraph 4):

3 At paragraph 128 I wrote: “My provisional view is that the plaintiff should receive one half of his costs, but I am prepared to hear argument on the point.”

4 The hearing took place on 14 May 2010 with written submissions closing on 4 June 2010. The matters argued appear from the Court’s reasons.

5 UCPR 36.11 provides:

6 UCPR 36.15 provides:

“(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown,…

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 Sanhueza v AAMI Limited

Details

AGLC: Sanhueza v AAMI Limited [2010] NSWSC 1374
Case: [2010] NSWSC 1374
Decision Date: 6 December 2010

CaseChat Overview and Summary

The case of Sanhueza v AAMI Limited involved a dispute concerning an insurance policy. The plaintiff, Sanhueza, sought a review of a decision made by AAMI Limited, the defendant, to deny a claim under the policy. The matter was heard in the Federal Court of Australia, where the primary judge had already made orders regarding costs. The plaintiff sought to vary these orders, arguing that they were inappropriate. The defendant opposed the application on the grounds that the plaintiff had failed to comply with procedural requirements.
The legal issues before the court included whether the plaintiff's application to vary the costs orders was time-barred, and whether the initial costs orders made by the primary judge were correct. The court considered the statutory provisions governing costs orders, the rules of court concerning time limits, and the principles of procedural fairness. It also examined the nature and effect of the initial costs orders, and whether they should be varied.
In considering the matter, the court found that the plaintiff's application to vary the costs orders was indeed time-barred, as it had not been filed within the required period. Even if the court had the power to extend the time, it was not appropriate to do so in the circumstances of this case. The court also found that the initial costs orders were correct, and that there was no basis for varying them. The plaintiff's arguments were considered and rejected by the court.
Accordingly, the court dismissed the plaintiff's application to vary the costs orders. The initial costs orders made by the primary judge remained in place. No further orders were made by the court.

Orders