QBE Insurance Australia Limited v Allianz Australia Insurance Limited - [2020] FCA 707 - FCA 2020 case summary — Zoe

ALLSOP CJ: 1 On 6 May 2020 I delivered reasons in this matter in respect of two questions that had been posed for determination: QBE Insurance Australia Limited v Allianz Australia Insurance Limited [2020] FCA 589. 2 The parties are in substantial agreement as to what should occur by way of orders, with the exception of orders as to costs. The orders that I make in terms of Orders 1, 2, 4, 5 and 6 were agreed. As to the question of costs the parties were at issue. The applicant, which was successful in the answers it sought to the two questions, sought its costs. The respondent sought to have the costs made costs in the cause. 3 The submissions of each party will be held on the file. It is unnecessary to repeat them in detail. Broadly, the applicant, having won, wanted its costs. The issues as discrete issues were propounded and decided one way and, on the authority of cases such as Floruit Holdings Pty Ltd v Sebastian [2009] NSWCA 411, the applicant sought its costs. It did not seek the costs of the proceedings to date, only the costs of the separate questions. 4 The respondent submitted that because the case may have a result not entirely reflective of the applicant's ultimate submissions, the costs should be costs in the cause. It referred to cases such as Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 to the effect that interlocutory applications should generally lead to costs being costs in the cause or a party's costs in the cause. 5 The two issues here were fundamental. If the applicant lost them, that was the end of its claim for contribution. Having won the issues the foundation of a right of contribution exists, the issue becomes how much contribution there should be. That being the case there may be something to be said for not ordering all the costs payable at this stage. However, I do not think that there is any real basis for the notion that the costs should be costs in the cause since the availability of contribution really is now established. The question is one of quantum, broadly speaking. 6 The parties propose to have a mediation. I consider that the fairest course and the preferable course is to reserve the question of costs until after the mediation. I will deal with the costs then if they remain unresolved. However, in fairness to the applicant, I can see no real reason why it should not have the costs of the argument as it requested unless there appear facts to make its propounding of them and the propounding of the proceeding so lacking in real value as to entitle the respondent to a significant discount in those costs. 7 Therefore the Order 3 that I make will be that the parties' costs of and incidental to the hearing of the two separate questions be reserved and the balance of the costs remain costs in the cause. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

QBE Insurance Australia Limited v Allianz Australia Insurance Limited - [2020] FCA 707 - FCA 2020 case summary — Zoe