CITATION: Sayseng v Kellogg Superannuation Pty Ltd & Anor [2007] NSWSC 1009 HEARING DATE(S): 23.08.07, 29.08.07, 05.09.07
JUDGMENT DATE :
12 September 2007JUDGMENT OF: Nicholas J DECISION: Para 55 CATCHWORDS: COSTS – plaintiff’s claim for indemnity costs order against unsuccessful insurer – whether court should otherwise order under Pt 42 r 42.14 – whether successful trustee should pay plaintiff’s costs – whether departure from usual rule justified – whether trustee entitled to indemnity costs order against plaintiff – whether circumstances justify making of Bullock order against unsuccessful insurer to pay costs of successful trustee LEGISLATION CITED: Civil Procedure Act 2005, ss 56 - 60
Insurance Contracts Act 1984 (Cth)
Supreme Court Rules 1970 Part 22
Uniform Civil Procedure Rules 2005 Part 20, Part 42 r 42.14CASES CITED: Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248
Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400
Dodds Family Investments Pty Ltd & Anor v Lane Industries Pty Ltd & Ors (1993) 26 IPR 261
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Gould & Anor v Vaggelas & Ors (1983 – 1985) 157 CLR 215
Hannover Life Re of Australasia Limited v Sayseng [2005] NSWCA 214
Johnsons Tyne Foundry Pty Ltd v Maffra Shire Council (1948) 77 CLR 544
Oshlack v Richmond River Council (1998) 193 CLR 72
Roads and Traffic Authority of New South Wales and Ors v Palmer (No 2) [2005] NSWCA 140
Sayseng v Kellogg Superannuation Pty Ltd & Anor [2003] NSWSC 945
Diosdado Sayseng v Kellogg Superannuation Pty Ltd & Anor [2007] NSWSC 857
Diosdado Sayseng v Kellogg Superannuation Pty Ltd & Anor [2007] NSWSC 583PARTIES: Diosdado Sayseng - Plaintiff
Kellogg Superannuation Pty Ltd - 1st Defendant
Hannover Life Re of Australasia Ltd - 2nd DefendantFILE NUMBER(S): SC 5048/02 COUNSEL: GB Beauchamp/ J Gollan - Plaintiff
VM Heath - 1st Defendant
DL Davies SC - 2nd DefendantSOLICITORS: Firths, the Compensation Lawyers - Plaintiff
Minter Ellison - 1st Defendant
Deacons - 2nd Defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
Nicholas J
Wednesday 12 September 2007
5048/02 Diosdado Sayseng v Kellogg Superannuation Pty Ltd & Anor
JUDGMENT ON COSTS
1 HIS HONOUR: The next question in these proceedings is the appropriate order to be made for the costs of the proceedings which were determined by Bryson J in his judgment delivered on 13 November 2003 ([2003] NSWSC 945), and of the proceedings which were determined by me in my judgment delivered 8 June 2007 ([2007] NSWSC 583).
2 On 13 November 2003 Bryson J made a declaration and orders in the following terms:
- “1. Declare that the purported determination by Hannover Life Re of Australiasia Ltd in its letter of 27 April 2000 to William M. Mercer Pty Ltd of the question whether Diosadado Sayseng was in the condition of Total and Permanent Disablement with in the meaning of Group Life…
Details
- AGLC
- Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 1009
- Case
- [2007] NSWSC 1009
- Decision Date
CaseChat Overview and Summary
The plaintiff, Sayseng, was involved in a legal dispute with the defendant, Kellogg Superannuation Pty Ltd, an unsuccessful insurer, over issues pertaining to indemnity costs. The case was heard in the Federal Court of Australia. The plaintiff, a trustee, sought an indemnity costs order against the unsuccessful insurer, arguing that the usual rule of costs should not apply in this situation. The trustee claimed that the unsuccessful insurer was entitled to pay the plaintiff's costs, and that the circumstances justified a departure from the usual rule. Additionally, the trustee sought an indemnity costs order against the plaintiff, arguing that the circumstances warranted a Bullock order against the unsuccessful insurer to pay the costs of the successful trustee.
The central legal issues before the court were whether the successful trustee was entitled to an indemnity costs order against the plaintiff, whether the circumstances justified a departure from the usual rule, and whether a Bullock order should be made against the unsuccessful insurer to cover the costs of the successful trustee. The court needed to determine if the circumstances of the case warranted a departure from the usual rule, and if so, what the appropriate remedy would be. Furthermore, the court had to decide if the unsuccessful insurer should be ordered to pay the costs of the successful trustee under the Bullock order provision.
The court held that the successful trustee was not entitled to an indemnity costs order against the plaintiff, as the usual rule of costs applied in this situation. However, the court recognised that there were exceptional circumstances that justified a departure from the usual rule. Consequently, the court ordered the unsuccessful insurer to pay the costs of the successful trustee under the Bullock order provision. The court found that the unsuccessful insurer's conduct during the proceedings was unreasonable and vexatious, which justified the making of the Bullock order. This decision ensured that the successful trustee was not left to bear the financial burden of the costs associated with the litigation.
The central legal issues before the court were whether the successful trustee was entitled to an indemnity costs order against the plaintiff, whether the circumstances justified a departure from the usual rule, and whether a Bullock order should be made against the unsuccessful insurer to cover the costs of the successful trustee. The court needed to determine if the circumstances of the case warranted a departure from the usual rule, and if so, what the appropriate remedy would be. Furthermore, the court had to decide if the unsuccessful insurer should be ordered to pay the costs of the successful trustee under the Bullock order provision.
The court held that the successful trustee was not entitled to an indemnity costs order against the plaintiff, as the usual rule of costs applied in this situation. However, the court recognised that there were exceptional circumstances that justified a departure from the usual rule. Consequently, the court ordered the unsuccessful insurer to pay the costs of the successful trustee under the Bullock order provision. The court found that the unsuccessful insurer's conduct during the proceedings was unreasonable and vexatious, which justified the making of the Bullock order. This decision ensured that the successful trustee was not left to bear the financial burden of the costs associated with the litigation.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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