Plaintiff v Defendants

1 On 21 March 2025, I made orders for summary judgment in favour of the first defendant on the return of its summons filed on 27 August 2024. I also delivered my primary reasons for ruling,[1] although I reserved my decision on the question of costs. In its summons, the first defendant sought an order in respect of its costs as follows:

The Plaintiff pay the First Defendant[']s costs of the proceeding, including the costs of and incidental to this summons (with the basis for taxation to be determined after the determination of the relief sought by paragraphs 1, alternatively 2, above).

2 By my Reasons, I invited further submissions from the plaintiff and the first defendant on the question of costs. After these costs submissions had been filed, I listed the matter for a brief mention on 16 April 2025 to interrogate certain aspects of the first defendant's costs submissions. By its costs submissions, the first defendant submits that, given its success on the application, it is entitled to its costs of the proceeding and of the application. It seeks payment of its costs on the standard basis.

3 Having considered the costs submissions, and the submissions and the evidence filed with respect to the summary judgment application, and for the reasons which follow in this ruling, I will order that the plaintiff pay the first defendant's costs of the proceeding incurred on and after 3 August 2024 on a standard basis, to be taxed in default of agreement.

Background to, and chronology of, the first defendant's involvement in this proceeding

4 The first defendant is a group of underwriters known as 'Certain Underwriters at Lloyds subscribing to policy number A039511'. These underwriters insured Soar Aviation Pty Ltd ('Soar Aviation'), which company, although de-registered on 7 October 2020, was the first named defendant when the plaintiff commenced the proceeding on 30 September 2021.

5 This syndicate of underwriters insured Soar Aviation, together with the third and fourth defendants in this proceeding, under two policies of insurance, namely 'Hangarkeepers Legal Liability Insurance Policy numbered A039511' ('Hangarkeepers Policy') and 'Aircraft Hull and Liability Insurance Policy numbered H3-36920' ('Hull Policy').[2]

6 As noted at paragraph 7 of the Reasons, having learned that Soar Aviation was deregistered, on 22 March 2022, the plaintiff then erroneously joined Catalyst Consulting (Aust) Pty Ltd ('Catalyst') as first defendant pursuant to s 601AG of the Corporations Act 2001 (Cth) ('Corporations Act'). The plaintiff mistook Catalyst for Soar Aviation's insurer when it was instead the broker or insurance agent who arranged the Hangarkeepers Policy and the Hull Policy.

7 On 9 June 2022, the plaintiff served a proposed further amended statement of claim which named 'Certain Underwriters at Lloyds Subscribing to Policy Number A039511' (that is, the currently named first defendant) in lieu of Catalyst.[3] For reasons not exposed on the evidence filed in respect of the summary judgment application heard by me, this pleading was not filed until May 2023. When it was filed, it also joined the third to fifth defendants.

8 On 27 June 2022, Norton White, the first defendant's solicitors, sent a letter to the plaintiff's solicitors which relevantly stated:

We observe that to date, the Plaintiff has filed or sought to file three different Statements of Claim in this proceeding:

...

• A proposed Further Amended Statement of Claim provided to us on 9 June 2022, which proposes to name Certain Underwriters at Lloyds Subscribing to Policy Number A039511 and Michael Hawthorne as defendants (but which - our client says - erroneously seeks to sue on the basis that Soar Aviation Pty Ltd was the operator of the flight training school referred to [in] paragraph 2 of that pleading).

... Following receipt of the proposed Further Amended Statement of Claim, we obtained a copy of the voluntary administrators' report dated 4 February 2021 to creditors in respect of the 'Soar' group of companies which are no longer operating. The records of the companies that we have seen, which include the product of investigations undertaken by Brendan Richards and James Stewart of KPMG, confirm that Gobel Aviation Pty Ltd operated the flight school at Moorabbin Airport and aircraft VH-YVX was registered in the name of Soar Aviation Aircraft Holdings Pty Ltd...[4]

The first defendant relied upon this letter in support of its submission, on the summary judgment application, that it was never a 'secret' that Soar Aviation was the incorrect party. It further submitted:

...notwithstanding, the Plaintiff, has - incorrectly - maintained his claim against Soar [Aviation] (and, by statutory mechanism, [the first defendant]) for negligence. Given the position of Soar [Aviation], which neither owned the Aircraft nor had any involvement in the Flight School, there is no basis to contend that Soar [Aviation] owed the Plaintiff a duty o[f] care or that any such duty was breached.[5]

In oral submissions, Counsel for the first defendant put the effect of the first defendant's 27 June 2022 letter thus:

So two and a half years ago this was pointed out that effectively 'you have sued the wrong party'.[6]

9 The events and correspondence that followed between Norton White and the plaintiff's then solicitors during the period from late June 2022 to May 2023 is summarised in the recitals to the orders of Irving AsJ made on 30 August 2023. In the absence of agreement to orders it had proposed in correspondence, Catalyst filed a summons on 18 October 2022 seeking summary judgment against the plaintiff. It alleged that it was not an insurer of Soar Aviation and accordingly, was not properly joined to the proceeding pursuant to s 601AG of the Corporations Act. On 25 October 2022, the plaintiff filed his own summons seeking, among other things, to correct the name of the first defendant from Catalyst to 'Certain Underwriters at Lloyds subscribing to policy number A039511' (that is, the currently named first defendant).

10 On 5 May 2023, the Court made orders substituting Catalyst with the presently named first defendant. Critically to this application, in my view, those orders which effectively joined the first defendant to the proceeding were made:

(a) by consent with the first defendant; and

(b) nearly 12 months after the first defendant submits that its own solicitors had pointed out to the plaintiff that he had sued the wrong party (because Soar Aviation never owned the aircraft and never operated the flight school).

The first defendant's conduct relevant to costs

... given the underlying facts which justify summary judgment have existed since before the plaintiff's accident, and from well before the proceeding was commenced as against the first defendant, I seek an explanation from the first defendant as to why it did not make its application far earlier in the proceeding such as when, in June 2022, it first pointed out to the plaintiff's then lawyers that he had sued the wrong defendant, as opposed to a couple of months prior to the (since vacated) trial in late 2024...[7]

The first response that the first defendant makes in its costs submissions to this observation is that it was not joined as a party to the proceeding until 5 May 2023. I accept that, at the time the June 2022 letter to which I have referred in the above extract was sent, the first defendant was not yet a party to the proceeding. However, with that correction to the chronology, the observation then becomes, in light of the contents of the June 2022 letter, why did the first defendant consent to orders which had the effect of joining it to the proceeding when it maintained it was the wrong party. The first defendant does not, in its costs submissions, refer at all to the circumstances of the sending, or to the contents, of the June 2022 letter. When pressed at the 16 April 2025 hearing as to why the first defendant gave its consent to orders effecting its joinder despite the contents of that letter, the response in part was - 'it's the plaintiff's obligation to sue the right entity.'[8] Counsel further submitted:

... the plaintiff asked us, 'We want to sue you, do you agree?' Well, we said, 'You're not suing the right party, but if you want, we will consent to it.'[9]

12 In the 27 June 2022 letter, the first defendant's solicitors refer, in support of their assertion that the plaintiff had sued the wrong entity because Soar Aviation did not own the plane or operate the flight school, to the KPMG Voluntary Administrators' Report to Creditors ('KPMG Report') dated 4 February 2021. The KPMG Report came to be included as Annexure C to the first Notice to Admit issued by the first defendant on 4 December 2023.[10] In the summary judgment application, the first defendant submitted that '[p]age 12 of the KPMG Report confirms that Soar [Aviation] was not part of the corporate group, which operated "one of Australia's largest flying schools".'[11] Additionally, the first defendant relied on:

(a) the section headed 'Group history and events leading up to the administration' at page 13;

(b) the sections of the Executive summary headed 'What is the Group?' and 'What is the ownership structure of the Group?' at page 4; and

(c) the definition of 'The Group' at page 2.

Including at the sections identified above, the KPMG Report lists the entities forming part of the group as at the date of appointment of the administrators, which list of entities does not include Soar Aviation. It describes the involvement of the group entities (which excluded Soar Aviation) in operating the flight school and refers to the plaintiff's accident as having occurred in a group owned aircraft. The KPMG Report also describes the restructure transaction which occurred in 2018, prior to the plaintiff's accident, and which resulted in Soar Aviation's removal from the group.

13 The 27 June 2022 letter responded to an email sent by the plaintiff's then solicitors on 24 June 2022, which was also put into evidence by the first defendant on the summary judgment application. That email asked the first defendant's solicitors to confirm whether it was Gobel[12] (the now fourth named defendant) who operated the flight school and owned the relevant aircraft. It then asked, if it was not Gobel, which entity in the group operated the flight school and the aircraft. The correspondence which preceded this email is not in evidence and it is not clear from what this enquiry emerged. Rather than answer the plaintiff's solicitor's questions, the 27 June 2022 letter that followed stated that '[t]he precise case to be brought by the Plaintiff is singularly a matter for him (and his legal representatives)' and '[i]nsofar as the questions contained in your email are concerned, these are matters for the Plaintiff to investigate.'

14 I accept that, as at June 2022, the first defendant was not yet party to the litigation and not bound by the Civil Procedure Act 2010 ('CPA'), so it did not yet owe the plaintiff a duty to co-operate in the proceeding. However, I fail to see how, in the context of modern litigation, it was in the first defendant's interests to send a letter that did not point out to the plaintiff in detail why it considered that he was about to join the wrong party. Why not send a copy of the KPMG Report or explain the first defendant's understanding of the corporate structure of the group and Soar Aviation's lack of involvement? Had the first defendant done so, its joinder may have been averted, saving much time and cost. But rather than do that, and despite protesting that it was the wrong party, it then consented to orders that had the effect of joining it to the proceeding.

15 The first defendant's explanation for providing its consent to those orders is that the plaintiff persisted with his application and, it submits, it was not its obligation to point out that he was suing the wrong entity; rather, it was the plaintiff's obligation to sue the correct entity.[13] That position suggests indifference to the result of a joinder application, such as where a party agrees to abide the determination of the Court. However, the first defendant was not indifferent; it positively consented to orders which had the effect of joining it to the proceeding as if it was a proper party. Yet, at the time it consented, it already possessed the KPMG Report which it knew confirmed that its insured, Soar Aviation, was not part of the group that owned and operated the flight school and the aircraft, and therefore could have no liability to the plaintiff.

16 The second response made by the first defendant to the Court's observation is that the first defendant needed to take certain steps such as issuing subpoenas, issuing notices to admit and 'determining Underwriters' position with respect to the third and fourth defendants',[14] before the application for summary judgment could be made. This latter point is further expanded in the first defendant's costs submissions as follows:

SAAH and Gobel are named as insureds under the Hull and Liability Policy (the Policy) issued by Underwriters. Before any summary judgment application was made, it was necessary for Underwriters to ascertain whether SAAH and Gobel intended to make a claim for indemnification under the Policy. It was only after 21 August 2023, when the plaintiff obtained default judgment against the SAAH and Gobel, that it became clear that SAAH and Gobel would not participate in the litigation.[15] (emphasis added)

To appreciate the meaning of this submission, it must be recalled that the syndicate of underwriters that is the first defendant also insured the third and fourth defendants to this proceeding, both of which are in liquidation. The plaintiff obtained leave to proceed against them on 6 February 2023.[16] For some time after leave was given, the first defendant tried to urge the liquidators of the third and fourth defendants to make a claim for indemnity under the Hull Policy, so that it (as the insurer for each) could exercise rights of subrogation and defend the proceeding against them on their behalf.[17] This is what I understand the submission to refer to when it says the underwriters were seeking to 'ascertain whether SAAH and Gobel intended to make a claim for indemnification under the Policy.' In the end, the liquidators never made a claim for indemnity under the Hull Policy, and the plaintiff obtained interlocutory judgment in default of appearance against the two companies on 21 August 2023.

17 I accept that, especially where it had consented to orders which had the effect of joining it to the proceeding as if it was a proper party, the first defendant needed clear evidence of the futility of the plaintiff's claim against it to secure summary judgment. Accordingly, it needed the time to issue subpoenas and the notices to admit. However, I do not understand the relevance of the position of third and fourth defendants to that issue. At the mention hearing in April, Counsel for the first defendant sought to clarify that what it intended to convey was that it was 'practical' rather than 'necessary' to ascertain the position of the third and fourth defendants. I do not see how the distinction assists. Certainly, it may have been a matter of practical convenience to the first defendant, having joined the litigation, to then gather information about the third and fourth defendants' conduct and their intentions to make a claim for indemnity under the Hull Policy. However, I do not see how this consideration justifies its joining and then remaining in this proceeding on behalf of the wrong party. It may have offered practical convenience to the first defendant, but certainly not to the plaintiff who is now being asked to bear the first defendant's costs of the proceeding.

18 The first defendant submits that the Court's observation at paragraph 34 of the Reasons appears to proceed from the (incorrect) premise that a defendant has an obligation to press for summary judgment in circumstances where the plaintiff pursues a hopeless case. I don't agree that this is the premise which motivates the Court's concern, nor does it motivate the exercise of the Court's costs discretion. The first defendant seeks its costs of the proceeding and of its application. In exercising the costs discretion, I can take its conduct, both before and during the litigation, into account.[18] Once it became a party to the litigation, it became subject to the obligations under the CPA to conduct its defence of the litigation in accordance with the overarching purpose and in compliance with the overarching obligations. In the present case, as explained above, it first protested its joinder, but then consented to orders which had the effect of joining it to the proceeding as if it was a proper party. Furthermore, it now admits that one of its purposes in continuing to conduct its defence of this litigation was to achieve some practical advantage for itself in another context. It is this conduct that I take into account in exercising the Court's discretion as to costs. I do not make any finding that it had a positive obligation to make a summary judgment application swiftly, or at all, nor do I need to make any such finding.

19 The power to award costs is discretionary and must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation.[19] Principles enunciated in earlier cases provide guidance to the courts in exercising the discretion in other contexts. Additionally, pursuant to s 8(1) of the CPA, the Court must seek to give effect to the overarching purpose whenever it makes a costs order, having regard to the mandatory and optional factors enumerated in s 9 of the CPA.[20] Amongst those optional factors is the 'degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding'[21] and 'the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding'.[22] Each of these invites consideration of the conduct of each party regardless of who is ultimately successful in the litigation, or part of it, and the extent of their compliance with the overarching obligations without necessarily requiring a finding of contravention of any one of them.

20 As the first defendant submits, by far the most important factor that may guide the exercise of the discretion is the result of the litigation, where the usual rule is that the successful party is generally entitled to an award of its costs.[23] In Sangare, the Court stated regarding the displacement of the usual rule:

The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. For example, a successful defendant may be refused its costs on the ground that its conduct induced the plaintiff to believe that he or she had a good cause of action.[24]

In Sangare, the Court referenced a series of authorities from England, Queensland and New South Wales in which pre-litigation conduct of a defendant, that was not the basis of the action and which induced a plaintiff to believe that they had a good cause of action, was relied upon to displace the usual order as to costs. Conduct amounting to a repudiation of liability, even a forceful one, will not usually suffice,[25] but a refusal by a trustee or agent to answer queries or give reasonable explanations or information, for example, may be sufficient,[26] as might uncorrected representations about how a defendant would conduct its litigation,[27] inconsistent explanations given by a defendant to an action in conversion regarding how they obtained an item,[28] and the failure of a defendant insurer to explain the reason for refusing indemnity.[29]

21 In the present case, the first defendant first asserted in June 2022 that it was the incorrect party to be joined as the first defendant because its insured, Soar Aviation, was neither involved in operating the flight school, nor did it own the aircraft in which the plaintiff had been injured. Though it was under no duty akin to that owed by a trustee to furnish information, it regrettably did not provide much information to explain its position despite that information being in its possession, nor did it give a co-operative answer to the plaintiff's queries. Most critically though, rather than maintaining its repudiation of liability on the basis that it was not the correct defendant, it subsequently changed its position and consented to orders that had the effect of naming it as the first defendant. By giving its consent to become a party to the proceeding, in my view, the first defendant induced in the plaintiff a reasonable belief that it was a proper party to the proceeding and the plaintiff's cause of action was maintainable against it. The outcome of the summary judgment application reveals that was not so.

22 The first defendant described it as 'necessary' for it to remain in the litigation until it could ascertain whether SAAH or Gobel, the third and the fourth defendant respectively, intended to make a claim (by their liquidators) against it for indemnity under the Hull Policy. It later submitted that this had been inelegantly expressed in its costs submissions, and would have been better expressed as 'practical'.[30] It was further submitted that it was 'practical for it to ascertain that position because it would then know whether or not it needed to participate in the proceeding generally'.[31] During the April 2025 hearing, I asked the first defendant whether it was proper to remain in litigation for the wrong party and incur costs in defending it until it ascertained whether or not it was going to have a substantive role in defending the proceeding on behalf of two other defendants who were proper parties. The first defendant submitted that it had no choice whether it became a party and that it had been sued by the plaintiff. When I raised in response that it had consented to orders that had the effect of joining it, it said instead that it had provided the plaintiff with information that he was suing the wrong party, and that it was the (then represented) plaintiff's obligation to sue the right entity. For the reasons previously set out, I do not agree with those submissions in the circumstances of this case.

23 The first defendant submits that ascertaining the position of the third and fourth defendants was not its only reason for continuing to defend the proceeding prior to making its summary judgment application. It submits that it needed to issue subpoenas and obtain responses to its notices to admit before it could responsibly apply, with the benefit of compelling evidence to support its position, for summary judgment. With respect, the first defendant would not have needed to gather any material to support a summary judgment application had it not consented to orders that had the effect of joining it in the first place. By its own admission, it suited the first defendant for some time at least (that is, until the position of the third and fourth defendants became clear) to conduct a defence of the litigation even though it believed it was the wrong party. In doing so, again by its own admission, it sought to obtain for itself a practical benefit. It now asks the plaintiff to pay its costs for doing so.

24 I do not regard the first defendant's conduct just described as being consistent with its overarching obligations or the achievement of the overarching purpose in this litigation. It is not conduct consistent with narrowing the issues or minimising costs and delay, nor is it conduct directed towards cooperating or to the use of reasonable endeavours to resolve the dispute. For the above reasons and subject to the exception for the period after the expiry of its settlement offer as described below, I decline to order that the plaintiff pay the first defendant's costs of the entire proceeding, despite its success.

Plaintiff's conduct in rejecting the settlement offer made by the first defendant

25 By letter dated 12 July 2024, the first defendant made an open offer to the (then still represented) plaintiff to discontinue the litigation against it, with the first defendant bearing its own costs of the proceeding to that date and also ensuring the costs orders made in favour of Catalyst were vacated. The central problem with the plaintiff's claim, the first defendant argued in the letter (as it had done before), was that Soar Aviation 'was neither involved in any way with [the] flight school nor was it the owner of the aircraft in which the Plaintiff was travelling.'[32] In the letter, the first defendant sets out in detail why the lack of connection between Soar Aviation and the plaintiff's accident is 'unequivocally established' by referring to the plaintiff's admissions that flowed from his failure to dispute the notices to admit and the materials later filed in support of the summary judgment application. The offer was expressed to be open for acceptance until 2 August 2024.

26 The plaintiff rejected the first defendant's offer.[33] While the first defendant does not rely on the letter to seek payment of its costs on an indemnity basis as it foreshadowed doing in the letter, it relies on it to demonstrate that the plaintiff had ample opportunity to consider his claim against the first defendant, including with the benefit of the information provided in the letter, and nevertheless persisted with his claims. It submits that it was wholly successful on its application for summary judgment and that the interests of justice are not served if it is not awarded its costs of the proceeding. In my view, the letter sufficiently armed the plaintiff from the date of its receipt with all of the information he needed to realise that his claim against the first defendant in its capacity as insurer of Soar Aviation was bound to fail. The detailed information in the letter should have given him pause, despite the inconsistent positions previously adopted by the first defendant, and he should not have rejected the offer. I am satisfied that it would not be just for the first defendant not to be compensated for its costs, including the costs of and incidental to the summary judgment application it then made, after the plaintiff rejected its offer. Accordingly, the first defendant should be entitled to recover its costs from the date following the date on which the offer expired.

27 For these reasons, I will order that the plaintiff pay the first defendant's costs of the proceeding, including its costs of and incidental to the summary judgment application, on and from the day after the offer of settlement expired, being 3 August 2024, on a standard basis and to be taxed in default of agreement.

CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY NUMBER A039511

SOAR AVIATION AIRCRAFT HOLDINGS PTY LTD (IN LIQ) (ACN 613 275 853)

GOBEL AVIATION PTY LTD (TRADING AS SOAR ADVANCED FLIGHT TRAINING) (IN LIQ) (ACN 006 160 658)

[1] Mohamed v Certain Underwriters at Lloyds & Ors [2025] VSC 126 ('Reasons').

[2] First Defendant's Costs Submissions filed on 28 March 2025, [11].

[3] Order of Irving AsJ in Mohamed v Certain Underwriters at Lloyds & Ors (Supreme Court of Victoria, S ECI 2021 03580, 30 August 2023) Recital G (xii) (Other Matters).

[4] Affidavit of Ian Ross Adrian sworn on 27 August 2024, Exhibit IRA-1, 13-14 ('Third Adrian Affidavit').

[5] First Defendant's Submissions filed on 27 August 2024, [3], noting Norton White was described as being the first defendant's solicitors, even though at that time they were appearing on behalf of Catalyst.

[6] Transcript of Proceedings, Mohamed v Certain Underwriters at Lloyds & Ors (Supreme Court of Victoria, S ECI 2021 03580, Goulden AsJ, 22 November 2024) T10.15-T10.17 ('Transcript').

[8] Transcript of Proceedings, Mohamed v Certain Underwriters at Lloyds & Ors (Supreme Court of Victoria, S ECI 2021 03580, Goulden AsJ, 16 April 2025) T4.7-T4.8 ('Transcript 2').

[10] Third Adrian Affidavit, Exhibit IRA-1, 22-189.

[11] First Defendant's Submissions filed on 27 August 2024, [23].

[12] Incorrectly referred to in the email as Global Aviation Pty Ltd: Third Adrian Affidavit, Exhibit IRA-1, 12.

[14] First Defendant's Costs Submissions filed on 28 March 2025, [3]. The Costs Submissions define the third defendant as 'SAAH' and the fourth defendant as 'Gobel'.

[15] First Defendant's Costs Submissions filed on 28 March 2025, [11].

[16] Re Soar Aviation Aircraft Holdings Pty Ltd (in liq) and Gobel Aviation Pty Ltd (in liq) [2022] VSC 812.

[17] As is revealed in material filed by the first defendant in response to an application made by the fifth defendant and the reasons of Baker JR in respect of that application published as Mohamed v Certain Underwriters At Lloyds Subscribing to Policy Number A039511 [2024] VSC 829.

[18] Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164, 172-173 [24]-[25] ('Sangare'); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97-98 [67]-[69] (McHugh J).

[20] Angelevska v State of Victoria (No 4) [2016] VSC 720, [17]-[20].

[21] Civil Procedure Act 2010 (Vic) s 9(2)(c) ('CPA').

[22] CPA s 9(2)(e).

[25] Ritter v Godfrey [1920] 2 KB 47, 66 ('Godfrey').

[26] Godfrey 66; Stewart v Moore [1921] St R Qd 182, 189-190.

[27] Bostock v Ramsey Urban District Council [1900] UKLawRpKQB 143; [1900] 2 QB 616. In this case, the defendants had expressed a view about the existence of a civil remedy for the wrong alleged to have been done to them by the plaintiff. However, they subsequently changed their minds and brought a criminal indictment against the plaintiff without communicating the change in mind to him which in turn led the plaintiff to sue them for malicious prosecution.

[28] Scottish Gympie Gold Mines Ltd v Carroll [1902] St R Qd 311.

[29] Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] VicRp 12; [1991] 1 VR 129, 132 (Beach J), 156 (Kaye J).

[32] Third Adrian Affidavit, Exhibit IRA-1, 754.

[33] Third Adrian Affidavit, Exhibit IRA-1, 759.