Sciacca v Langshaw Valuations Pty Ltd

Summary of the parties' submissions on the costs application 11The plaintiffs contended that they had been successful on the amended motion and that there was no reason to except what had occurred prior to 12 July 2013 from the costs order that ought be made in its favour. They submitted that the amended motion raised a discrete issue on which they had been successful and, accordingly, they ought not have to wait for the end of the proceedings, which could be some time hence, to be paid. Further they submitted that Vero had been unreasonable in a number of respects which ought sound in an order that costs be payable forthwith: Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1. They principally relied on tardiness by Vero in bringing on the motion for hearing and the filing of the amended motion; the length of the affidavit of Ms Chapman which had been served in support of the motion as compared with the small number of documents relied upon at the hearing; and certain alleged defaults in complying with directions. 12Vero submitted that the matter that inclined it to seek summary dismissal rather than a separate question, as distinct from as an alternative to a separate question, was the filing of the amended pleading. The pleading contained allegations of fact relating to the claim and its notification that had hitherto been in dispute and indeed had been the subject of a notice to admit facts served by Vero on 17 July 2012, which had been disputed by the plaintiffs. 13Vero submitted that, although it was not taken by surprise by the amended pleading, the allegations made regarding the claim and its notification had the effect that it was no longer necessary to seek the determination of the separate question since there were no issues of fact outstanding that would prevent summary dismissal, if its contentions of law on the meaning of s 601 AG of the Corporations Act 2001 (Cth) and its application to the present case were accepted. 14Accordingly, Vero submitted that although the plaintiffs ought have their costs after 12 July 2013 since Vero was unsuccessful on the amended motion, the appropriate order was that there be no order as to costs up to that date. 15The plaintiffs submitted that Vero sought to amend its motion long before the plaintiffs sought to amend their pleading and therefore the latter could not have caused the former.

Reasons 16Vero's decision to press its application for summary dismissal rather than its application that there be a separate question, whilst an apparently reasonable forensic one, had the effect that costs had been expended by the plaintiffs on an application which did not go ahead and which turned out to be unnecessary. The decision to pursue summary dismissal rather than the determination of a separate question was based on there being no relevant dispute of fact. Relevant disputes of fact were removed by the filing of the amended pleading on 12 July 2013. 17The question arises from this sequence whether the plaintiffs ought to have made admissions as to the relevant facts regarding the policy or the date on which a claim was made or notified at an earlier time. The plaintiffs were not insured; they are claimants against the insured. It was necessary for them to make their own investigations before accepting the facts as to these matters that were asserted by Vero, as the insurer. Nonetheless, Vero had sought admissions by notice to admit facts served 17 July 2012 that the plaintiffs first notified a claim to the seventh defendant as the principal of IMP on 21 April 2011. The date of first notification of a claim was a date that the plaintiffs themselves must have known, or had the means of establishing by asking their former solicitors. 18Principal issues of fact, such as the identity of the policy, the making of a claim and the notification of a claim are matters that, in my view, the plaintiffs ought to have addressed in their pleading prior to the direction made by Slattery J on 25 June 2013. Had they done so, Vero would have been in a position to have its application for summary dismissal heard earlier and would not have sought the determination of a separate question. 19I am satisfied that the steps Vero took to have the issue which I determined adversely to it decided at a relatively early stage of the proceedings were not unreasonable. That it sought determination of a separate question as its principal relief on the motion, rather than summary dismissal, was a product of the plaintiffs' non-admission of certain salient facts germane to the resolution of the issue of cover under the policy. 20Although Vero's conduct in seeking to have the claim against it dismissed was not unreasonable, it has been unsuccessful and therefore should pay the costs of the motion and the amended motion. The plaintiffs' reluctance to make an admission which it could have made earlier may well have contributed to the costs incurred and the initial order sought. I am not, however, persuaded that the plaintiffs' conduct is sufficient to disentitle them to the costs of the period from the filing of the motion to the filing of the amended pleading. 21In my view, the appropriate order is that Vero pay the plaintiffs' costs of the motion and the amended motion. 22Although the issue raised by the motion and the amended motion was discrete, I am not persuaded that it is appropriate to order that these costs be paid forthwith. Further, as is apparent from the reasons given above, I do not regard Vero's conduct as warranting such an order. 23I note that the evidence adduced in support of the costs argument included a letter dated 25 September 2013 from Vero's solicitors to the plaintiffs' solicitors that was expressed to be without prejudice save as to costs in which Vero proposed an order that Vero pay the plaintiffs' costs of the amended notice of motion on the ordinary basis. It is not clear to me whether this offer included the costs of the motion, as well as the costs of the amended motion, or whether the costs of the motion were excluded from the offer. This letter does not cause me to except from the costs order the costs of the hearing before me on 4 October 2013, which are included in the costs order made in favour of the plaintiff.

Orders 24I make the following orders: (1) Order the third defendant to pay the plaintiffs' costs of the motion I make the following orders: filed on 20 August 2012 and the amended motion filed on 12 July 2013, including the costs of the hearing on 4 October 2013.

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