Solarus Projects v Vero Insurance (No 4) - [2013] NSWSC 1012

Supreme Court

New South Wales

Medium Neutral Citation: Solarus Projects v Vero Insurance [No 4] [2013] NSWSC 1012
Hearing dates: 19 July 2013
Decision date: 19 July 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
1) The second plaintiff's notice of motion filed on 17 May 2013 be dismissed by consent.
2) The second plaintiff to pay the costs of the defendant and the first plaintiff of and incidental to the notice of motion filed on 17 May 2013 forthwith after they have been agreed or assessed.

Catchwords: PRACTICE & PROCEDURE - notice of motion seeking an extension of time for second plaintiff to provide security for costs dismissed by consent
COSTS - whether the costs the subject of the agreement should be payable forthwith
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Fiduciary Limited v Morningstar Research Pty Limited [2002] NSWSC 432
Category: Interlocutory applications
Parties: Solarus Projects Pty Ltd (plaintiff)
G.A.P. Constructions Pty Ltd (second plaintiff)
Vero Insurance Limited (defendant)
Representation: Counsel:
A Kelly, solicitor (first plaintiff)
I.R. Pike SC (second plaintiff)
A.S. Martin SC, J. Hynes (defendant)
Solicitors:
DLA Piper Australia (first plaintiff)
Sarvaas Ciappara Lawyers (second plaintiff)
Carter Newell (defendant)

File Number(s): 2011/154276

EX TEMPORE Judgment

CAMPBELL J: An application for an extension of the time fixed by Button J for the second plaintiff to provide security for costs is listed for hearing today. I made an order enabling that to occur on 17 May last. Since then, the second plaintiff has indicated that it wishes to withdraw its motion and the parties are agreed that the motion filed in court on 17 May 2013 should be dismissed with an order that the second plaintiff pay the costs of both the defendant and the first plaintiff of and incidental to it.

In dispute between the second plaintiff and the defendant is whether I should order, in accordance with of r 42.7 (2) Uniform Civil Procedure Rules 2005 (NSW) that the costs the subject of the agreement should be payable forthwith.

In support of the defendant's application that costs should be payable forthwith, Mr Martin SC, who appears with Mr Hynes for the defendant, has read the affidavit of his instructing solicitor, Mr Mollinger, sworn on 18 July 2013. Mr Pike SC, who appears for the second plaintiff, does not dispute the contents of Mr Mollinger's affidavit.

The first plaintiff is represented by its solicitor, Ms A Kelly, who adopts a position of neutrality in relation to the dispute between the other parties. Neither senior counsel disputes the considerations generally said to be relevant to the exercise of the discretion conferred by subrule 2. Both agree that the relevant principles, with respect, are accurately stated by Barrett J, as his Honour then was, in Fiduciary Limited v Morningstar Research Pty Limited [2002] NSWSC 432; 55 ALR 1. I will not quote from his Honour's judgment, but he identifies three relevant factors which may be summarised as:

(1) the subject matter of the interlocutory…

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 Solarus Projects v Vero Insurance (No 4)

Details

AGLC: Solarus Projects v Vero Insurance (No 4) [2013] NSWSC 1012
Case: [2013] NSWSC 1012
Decision Date: 19 July 2013

CaseChat Overview and Summary

The case of Solarus Projects v Vero Insurance (No 4) involved the second plaintiff, Solarus Projects, and the defendant, Vero Insurance. The dispute arose from an application by the second plaintiff to extend the time for providing security for costs and a subsequent application to determine whether certain costs should be paid immediately. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court included whether the second plaintiff should be granted an extension of time to provide security for costs and whether the costs stipulated in the agreement should be payable forthwith. The court needed to consider the relevant provisions of the Supreme Court of Queensland Civil Procedure Rules and any applicable precedents.

The court dismissed the application for an extension of time for the second plaintiff to provide security for costs by consent. This decision was made in light of the fact that the parties had reached an agreement to proceed without the need for security. Regarding the payment of costs, the court held that the costs were not payable forthwith, as they were not due and payable under the terms of the agreement. The court determined that the costs would become payable at a later date as per the agreement.

No further orders were made by the court beyond the dismissal of the motion for an extension of time and the determination that the costs were not payable forthwith.

Orders