Solarus Projects Pty Ltd v Vero Insurance (No 9)
[2015] NSWSC 503
•07 May 2015
Supreme Court
New South Wales
Medium Neutral Citation: Solarus Projects Pty Ltd v Vero Insurance (No 9) [2015] NSWSC 503 Hearing dates: In Chambers – on the papers Date of orders: 07 May 2015 Decision date: 07 May 2015 Jurisdiction: Common Law Before: Campbell J Decision: The defendant to pay the plaintiff’s costs of and incidental to the determination of the separate questions on the ordinary basis.
Catchwords: COSTS – determination of separate question – determination a separate event – costs to follow the event Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ajkay v Hickey & Co. Pty Ltd [2011] NSWSC 822;
Floruit Holdings Pty Ltd v Sebastian – Builders and Developers Pty Ltd [2009] NSWCA 411;
O’Keefe Nominees Pty Ltd v BP Australia (No 2) (1995) 55 FCR 591;
Turkmani v Visvalingam (No 2) [2009] NSWCA 279;
Waters v PC Henderson (Aust) Pty Ltd (1994) 254 ALR 328Category: Procedural and other rulings Parties: Solarus Projects Pty Ltd (Receivers and Managers appointed (in Liquidation) (Plaintiff)
Vero Insurance Limited (Defendant)Representation: Counsel: A Leopold SC with Ms A Horvath (Plaintiff)
Solicitors:
AS Martin SC with J Hynes (Defendant)
File Number(s): 2011/154276
Judgment
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On 14th April 2015 I decided questions ordered to be determined separately under Rule 28.2 Uniform Civil Procedure Rules 2005 (NSW) in favour of the plaintiff (Solarus) by ruling that it was an “insured” within the meaning of sub-paragraph (b) of the extended definition of insured in the Schedule to a Project Contract Works Insurance Policy issued by the defendant (Vero) on 2nd May 2007 (see [2015] NSWSC 412). I did not pronounce any order for costs.
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By written submissions filed on 21st April 2015, with my leave, Solarus submits “Vero should be ordered to pay, on the ordinary basis, Solarus’ costs of and incidental to the separate hearing on 5 September 2014”. (Solarus submissions, p 7[9]). By its written submissions filed on 28th April 2015, Vero argues that the costs of and incidental to the separate hearing should be reserved to the intent that the costs of each party stand as its costs in the principal proceedings under Rule 42.7 UCPR (Vero submissions p 1[1]). In the alternative, Vero submits that the appropriate order is “no order as to costs”. An order in this form may engage Rule 42.7(1)(b), to the same effect.
Background to separate determination
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The order for the determination of the separate question would only have finalised the whole proceedings if I had decided it in favour of Vero. Obviously, identifying itself as an insured within the meaning of the policy in the circumstances of this case was no more than a threshold question. In ordering the determination of the separate question on 17th December 2013, ([2013] NSWSC 1966) I said (at [4] – [5]):
[4] The issues in the proceedings are many and indeed while it is fair to say that the question of whether the plaintiff is an insured is a fundamental issue it is only one of a number of questions informing a larger issue as to whether it is entitled to recover under the policy for any loss suffered.
[5] In her affidavit Amelia Heather Kelly, the solicitor with carriage of this matter on behalf of the plaintiff, at para 14 identifies some seven matters which it might be said go to the entitlement of the plaintiff to cover under the policy, in addition to the question of whether Solarus is an insured. Moreover, she deposes to the fact that the issues going to quantum, some of which are bound up with questions of entitlement to cover, are likely to be exceedingly complex. On her assessment, based on her experience of similar litigation, the case is likely to occupy some two months of hearing time, if not more, if all issues are required to be determined by the court, with costs in the range of $700,000 to about $1.5 million.
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Notwithstanding these findings I was persuaded to make the order because it was a fundamental issue. Its early determination would allow the parties to concentrate upon the other complex issues, if the proceedings were to continue, confident Solarus was at least entitled to claim on the policy even if that claim ultimately fails: [2013] NSWSC 1966 at [25].
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As I said in the previous judgment there remain 7 other issues which, as I understand them from my management of the case, go to the nature of the occurrence, whether Solarus, which owns the land on which the project was developed, relevantly suffered any loss, and whether pleaded exclusions covered the claim.
The arguments of the parties
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Solarus relies upon, what it says, is a general rule of practice that when a question is determined separately, that determination is treated as an “event” which costs follow. It is the almost invariable practice of the Equity Division that the order Solarus seeks is made. It relies principally on a judgment of Bergin CJ in Eq (sitting as a Judge of Appeal) in Floruit Holdings Pty Ltd v Sebastian – Builders and Developers Pty Ltd [2009] NSWCA 411. Her Honour said (at [7]):
The fact that the appellants may not be successful in the main case in the District Court, by reason of a failure to prove causation or for any other reason, does not in my view disentitle them to their costs of the hearing in relation to the separate question, which was a discrete issue. The appellants should have their costs of the hearing of the separate question in the District Court.
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To demonstrate the “generalness” of the rule many cases are cited where it has been applied including Ajkay v Hickey & Co. Pty Ltd [2011] NSWSC 822 where Pembroke J (at [21]) said:
The next question raises an important question of policy on which the Court of Appeal has already expressed a clear view. The question is whether there should be a costs order on the separate question at all or whether I should wait until final resolution of the proceedings. Sometimes the determination of a separate question will resolve the whole proceedings. Sometimes it will only resolve part of the litigation, leaving much for further hearing. Even if the separate question only resolves part of the litigation, the issue will have been identified because of its perceived legal or practical significance to the parties. As a matter of policy, my view is that unless there are compelling reasons to the contrary, orders for the costs of a separate question should be made at the time of the separate hearing and should not await the conclusion of the proceedings.
Solarus also drew an analogy from those cases where the court will apportion costs where an issue “is clearly dominant or separable”: Waters v PC Henderson (Aust) Pty Ltd (1994) 254 ALR 328 at 330 – 331; Turkmani v Visvalingam (No 2) [2009] NSWCA 279 at [12] and [15].
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Vero argued that, especially in complex litigation, reserving costs on interlocutory questions will often better “reflect the justice of the situation” for the reasons explained by Spender J in O’Keefe Nominees Pty Ltd v BP Australia (No 2) (1995) 55 FCR 591:
The primary concern that an order for costs reflect the justice of the situation is the reason that on many interlocutory questions the costs are reserved. In most cases, when an order for costs of the principal proceedings is made, no specific reference is made to costs which are reserved and they are, by the order for costs which is made, picked up in favour of the party that has been successful in the litigation. This circumstance reinforces the not uncommon position that in respect of the payment of costs of an interlocutory application, it is not necessarily just that the costs of an interlocutory application should follow the result of that interlocutory application but rather should be determined by the result of the principal litigation of which the interlocutory application forms but a part. For the same reason, costs orders on interlocutory applications are sometimes made whereby the costs of the application are the costs of the applicant in the principal proceedings or of a respondent in the principal proceedings, so that the benefit of that costs order is dependent on the outcome of the principal litigation. In this particular case, there has not been a final determination of the issues initiated between O'Keeffe Nominees and BP. In that sense, there has been no determination of which party would ultimately succeed and there has not been ``the event'’ which, absent any specific order, reserved costs would follow.
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Vero also drew an analogy from the dominant or separable issue approach justifying a departure from the general rule. It argued that Solarus had attacked the question on a very broad front, but only one of its many arguments had penetrated Vero’s stout defence; even then that successful attack required regrouping in the course of oral argument (Vero submissions [16] – [23]). Viewed from this standpoint, Vero said it could credibly argue it was entitled to some consideration as to costs and for this reason, no order, in the alternative, might best reflect the justice of the case.
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Solarus joined issue on the alternative argument. It was not unusual when a question of construction was at stake that a number of contentions might be put, only one or some of which, in the end, would be successful. Moreover, most of the evidence tendered at the hearing went to establishing that Solarus was an associated company of the named insured, the point on which it succeeded.
Decision
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There is much to be said for each side of the argument. I am persuaded, however, that the determination of a separate question is no mere interlocutory ruling relating to practice and procedure attracting the approach of Spender J in O’Keefe Nominees. I do regard Bergin CJ in Eq’s approach in Floruit Holdings as reflecting a general rule of practice. Her Honour recognised that the case might yet be lost by the party who was successful on the separate question for a variety of reasons. As Pembroke J put it, the determination of a separate question almost always decides an issue the parties perceive to have legal or practical significance for the resolution of the litigation. That there may be “much for further hearing” in this case, as in like cases, does not detract from the applicability of the “general rule” (with great respect, I hesitate to regard it as a matter of judicial “policy”). None of Vero’s arguments persuade me that this is an occasion for departure from the general rule.
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However, I do not think that any occasion has arisen for departure from the operation of Rule 42.7(2) UCPR.
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My costs order is:
The defendant to pay the plaintiff’s costs of and incidental to the determination of the separate questions on the ordinary basis.
Decision last updated: 07 May 2015
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