T and T Investments Australia Pty Limited v CGU Insurance Limited

[2016] NSWCA 16

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

T & T Investments Australia Pty Limited v CGU Insurance Limited [2016] NSWCA 16

Hearing dates:

10 February 2016

Decision date:

10 February 2016

Before:

Beazley P;
Meagher JA;
Sackville AJA

Decision:

1   Vacate the hearing listed for today, Wednesday 10 February 2016;

 

2.   The appellant pay the respondent’s costs thrown away in consequence of order (1), on the ordinary basis;

 

3.   The Court assesses the respondent’s costs thrown away in the sum of $12,000;

 

4.   The Court directs that the sum of $12,000 be paid to the respondent’s solicitors in satisfaction of order (2), out of the amount of $25,000 paid into court as security for the appeal;

 

5.   Direct the appellant to pay into court a further sum of $12,000 within 28 days of today’s date as further security for the costs of appeal;

 

6.   Direct that the appeal be stayed pending provision of security by the appellant in accordance with order (5);

 

7.   Direct the appellant, within 14 days of providing the further security for costs, to apply to the Registrar to list the appeal for further directions;

 8.   Note that the parties are agreed that the appeal is as of right and the matter is to proceed on that basis.

Catchwords:

PRACTICE AND PROCEDURE – application for adjournment – application made on the day of hearing

 

COSTS – where applicant sought adjournment on the day of hearing – proceedings adjourned – costs thrown away by adjournment – whether indemnity costs should be awarded – costs assessed on a lump sum basis

 

COSTS – security for costs – costs of appeal and costs thrown away by adjournment

  CORPORATIONS – directors & officers – leave to appear on behalf of corporation

Category:

Principal judgment

Parties:

T & T Investments Australia Pty Limited (Appellant)
CGU Insurance Limited (Respondent)

Representation:

Counsel:
A Trotter (Appellant)
L V Gyles SC; H Chiu (Respondent)

  Solicitors:
N/A (Appellant)
Turks Legal (Respondent)

File Number(s):

2015/257707

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

10 October 2014

Before:

Olsson SC DCJ

File Number(s):

2013/94741

Judgment

1. THE COURT: The appellant makes an application that the appeal listed for hearing today, Wednesday 10 February 2016, be adjourned so that it can obtain legal representation, its previous solicitors having filed a notice of ceasing to act.

2. Mr A Trotter, the sole director of the appellant, was given leave to appear on behalf of the appellant for the purposes of the hearing of today’s application. The respondent opposed the adjournment and seeks that the matter proceed. Alternatively, if the Court granted the adjournment the respondent seeks its costs thrown away by the adjournment on an indemnity basis and a further order that the Court assess those costs and make a lump sum order in that regard. The respondent also seeks orders that the costs be paid forthwith, and that there be provision for further security for costs.

3. In support of that aspect of the orders that it sought, namely, the costs orders, the respondent filed an affidavit sworn by Mr Michael Adie today, 10 February 2016, annexing a schedule of costs said to have been thrown away by the adjournment, should it be granted. A perusal of that schedule readily revealed that costs had been included for matters that relate to the substantive appeal and to communications between the parties in relation to other matters such as settlement offers. It should be noted that the costs included in the schedule have been included on a solicitor/client basis.

4. The Court proposes to grant the adjournment sought by the appellant and to order that the appellant pay the respondent’s costs thrown away by the adjournment on the ordinary basis. The Court will also make a lump sum costs order.

5. In assessing the costs on the ordinary basis, the Court has taken into account that the respondent made every endeavour, and appropriately so, to communicate with the appellant and with Mr Trotter, reminding both that the matter was listed for hearing and seeking to ascertain what was to happen. Nonetheless, the respondent did not state in that correspondence that it would seek to proceed to hearing as listed on 10 February and, that if an adjournment were granted, indemnity costs would be sought.

6. In addition, the respondent, in stating to the Court that it wished the matter to proceed today, was in fact not ready to proceed as it was not in a position to provide to the Court the relevant documents, including the transcript required for the determination of the appeal. For those reasons the Court has determined that an order that costs be assessed on an indemnity basis is not appropriate.

7. Accordingly, the Court makes the following orders:

1   Vacate the hearing listed for today, Wednesday 10 February 2016;

2.   The appellant pay the respondent’s costs thrown away in consequence of order (1), on the ordinary basis;

3.   The Court assesses the respondent’s costs thrown away in the sum of $12,000;

4.   The Court directs that the sum of $12,000 be paid to the respondent’s solicitors in satisfaction of order (2), out of the amount of $25,000 paid into court as security for the appeal;

5.   Direct the appellant to pay into court a further sum of $12,000 within 28 days of today’s date as further security for the costs of appeal;

6.   Direct that the appeal be stayed pending provision of security by the appellant in accordance with order (5);

7.   Direct the appellant, within 14 days of providing the further security for costs, to apply to the Registrar to list the appeal for further directions;

8.   Note that the parties are agreed that the appeal is as of right and the matter is to proceed on that basis.

**********

Decision last updated: 17 February 2016