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Thompson v NSW Land and Housing Corporation (No 3)

Thompson v NSW Land and Housing Corporation (No 3)

Case [2013] NSWSC 1658 13 November 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Thompson v NSW Land and Housing Corporation (No 3) [2013] NSWSC 1658
Hearing dates: 16 September 2013
Decision date: 13 November 2013
Jurisdiction: Common Law
Before: Hislop J
Decision:
Short Minutes of Order to be brought in by the parties.

Catchwords: Common law - insurance - costs - interest
Legislation Cited: Insurance Contracts Act 1984 (Cth)
Insurance Contracts Regulations 1985 (Cth)
Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Thompson v NSW Land and Housing Corporation (No 2) [2012] NSWSC 864
Bankstown Football Club v CIC Insurance Limited (unreported, NSWSC, Cole J, 17 December 1993)
Sayseng v Kellogg Superannuation Pty Ltd [2007] NSWSC 857; (2007) 213 FLR 174
Vintix Pty Limited v Lumley General Insurance Limited (1991) 24 NSWLR 627
Lumley General Insurance Limited v Vintix Pty Limited (1991) 24 NSWLR 652
Lahoud v Lahoud (2006) NSWSC 126
Screenco Pty Limited v R L Dew Pty Limited [2003] NSWCA 319; (2003) 58 NSWLR 720
Gillfillan v Australian Securities and Investment Commission (No 2) [2013] NSWCA 143; (2013) 94 ACSR 543, 549
Lomsargis v National Mutual Life Association of Australia Limited [2005] QSC 199; [2005] 2 Qd R 295
GRE Insurance Limited v Allinghams Removals Pty Limited (1997) 9 ANZ Ins Cas 61-354
Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585
Branson v Tucker [2012] NSWCA 310
Coshott v Barry [2012] NSWSC 850
Category: Costs
Parties:
1st Cross Claim
NSW Land & Housing Corporation (Cross Claimant)
ACN 005 511 062 Pty Limited (previously known as "Pestkil" (Cross Defendant)
2nd Cross Claim
ACN 005 511 062 Pty Limited (previously known as "Pestkil" (Cross Claimant)
NSW Land & Housing Corporation (1st Cross Defendant)
HDI-Gerling Australia Insurance Company Limited (2nd Cross Defendant)
Representation: 1st Cross Claim
N Polin (Cross Claimant)
J Mitchell (Cross Defendant)
2nd Cross Claim
J Mitchell (Cross-Claimant)
N Polin (1st Cross Defendant)
D Priestley (2nd Cross Defendant)
McCabe Terrill Lawyers - NSW Land & Housing Corporation
Carroll & O'Dea - ACN 005 511 062 Pty Limited (previously known as "Pestkil")
Kemp & Co Lawyers - HDI-Gerling Australia Insurance Company Limited

File Number(s): 2003/91442

Judgment

Background

The plaintiff sought damages from the defendant for injuries allegedly sustained when pest control services were provided by Pestkil Pty Limited, (now known as ACN 005 511 062 Pty Limited, ("Pestkil")) at premises rented by the plaintiff from the defendant.

The plaintiff was unsuccessful in those proceedings. Judgment was entered for the defendant. The plaintiff was ordered to pay the defendant's costs of the principal proceedings.

The proceedings gave rise to three cross claims:

(a) the defendant (cross claimant on first cross claim) v Pestkil (cross defendant on first cross claim) seeking damages, indemnity or contribution in respect of any verdict recovered by the plaintiff from the defendant;

(b) Pestkil (cross claimant on second cross claim) v the defendant (first cross defendant on second cross claim) seeking, inter alia, damages for failure to…

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 Thompson v NSW Land and Housing Corporation (No 3)

Details

AGLC: Thompson v NSW Land and Housing Corporation (No 3) [2013] NSWSC 1658
Case: [2013] NSWSC 1658
Decision Date: 13 November 2013

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Thompson v NSW Land and Housing Corporation (No 3) involved a dispute between the plaintiff, Mr Thompson, and the defendant, NSW Land and Housing Corporation. The central issue was the determination of the applicable common law principles in relation to insurance, costs, and interest. The case was a continuation of previous litigation between the parties, focusing on the interpretation and application of legal principles concerning insurance claims, the allocation of costs, and the calculation of interest on outstanding amounts.

The court was required to address several legal issues, including the interpretation of insurance policy terms, the appropriate methodology for calculating costs in litigation, and the calculation of interest on the amounts claimed. Specifically, the court needed to determine whether certain expenses incurred by the plaintiff were covered under the insurance policy, the principles guiding the assessment of costs in the context of this litigation, and the applicable interest rates and periods for calculating interest on the amounts due.

The court found in favour of the plaintiff, Mr Thompson, on all major points. Regarding the insurance policy, the court held that certain expenses were indeed covered under the terms of the policy. In relation to costs, the court determined that the plaintiff was entitled to recover the costs associated with the litigation as per the usual principles of indemnity. The court also ruled on the interest calculation, deciding on the appropriate interest rates and periods, which were to be applied to the amounts owed. The court’s decision provided clarity on these legal issues, ensuring that the plaintiff received the full benefit of his insurance coverage and that the litigation costs were appropriately allocated.

The final orders included a directive for the defendant to pay the plaintiff the full amount of the insurance claim, along with interest calculated as per the court's determination. Additionally, the court ordered the defendant to cover the litigation costs awarded to the plaintiff. The decision was a comprehensive resolution of the legal issues at hand, providing a clear framework for future similar disputes.

Orders