Esined No. 9 Pty Limited v Moylan Retirement Solutions Pty Ltd; P&S Kauter Investments Pty Ltd ATF the Kauter Superannuation Fund v Moylan Retirement Solutions Pty Ltd; Graeme Manning v Arch Underwriting At Lloyds Limited on Behalf of Syndicate 2012 (No. 3) [2020] NSWSC 930

Supreme Court New South Wales

Medium Neutral Citation: Esined No. 9 Pty Limited v Moylan Retirement Solutions Pty Ltd; P&S Kauter Investments Pty Ltd ATF the Kauter Superannuation Fund v Moylan Retirement Solutions Pty Ltd; Graeme Manning v Arch Underwriting At Lloyds Limited on Behalf of Syndicate 2012 (No. 3) [2020] NSWSC 930 Hearing dates: Decided in chambers on the papers. Date of orders: 22 July 2020 Decision date: 22 July 2020 Jurisdiction: Equity Before: Slattery J Decision: Plaintiffs' application that each party bear its own costs is dismissed. Orders made for the plaintiffs in each proceeding to be jointly and severally liable for the defendants' costs. Orders for indemnity costs not made. Catchwords: COSTS – Party/Party – General rule that costs follow the event – the Court dismissed the plaintiffs' claims against the underwriter defendants – subject to an application for a special costs order, the plaintiffs were ordered to pay the defendants' costs in each action – the Court granted liberty to apply for a special costs order – the plaintiffs seek orders for each party to bear its own costs of the proceedings – the defendants seek orders that the plaintiffs be jointly and severally liable for the underwriters' costs, as the plaintiffs were in substance pursing the same interest – the defendants seek an order for indemnity costs on the basis of a Calderbank letter. Legislation Cited: Civil Procedure Act 2005, s 98 Corporations Act 2001 (Cth), s 601AG Cases Cited: A v N [2012] NSWSC 549 Calderbank v Calderbank (1975) 3 All ER 333 Castro v Hillery [2003] 1 Qd R 651 Chaina v Alvaro Homes Pty Limited [2008] NSWCA 353 Chen v Chan [2009] VSCA 233 Equity 8 Pty Limited v Shaw Stockbroking Limited [2007] NSWSC 503 Esined No 9 Pty Limited v Moylan Retirement Solutions Pty Ltd; P&S Kauter Investments Pty Ltd ATF the Kauter Superannuation Fund v Moylan Retirement Solutions Pty Ltd; Graeme Manning v Arch Underwriting At Lloyds Limited on Behalf of Syndicate 2012 [2018] NSWSC 1706 Esined No. 9 Pty Limited v Moylan Retirement Solutions Pty Ltd; P&S Kauter Investments Pty Ltd ATF the Kauter Superannuation Fund v Moylan Retirement Solutions Pty Ltd; Graeme Manning v Arch Underwriting At Lloyds Limited on Behalf of Syndicate 2012 (No. 2) [2020] NSWSC 359 Evans Shire Council v Richardson (No. 2) [2006] NSWCA 61 Griffith v Australian Broadcasting Corporation (No. 2) [2011] NSWCA 145 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No. 2) (2005) 13 VR 435; [2005] VSC 298 King Network Group Pty Limited v Club of the Clubs Pty Limited (No. 2) [2009] NSWCA 204 Leichhardt Municipal Council v Green [2004] NSWCA 341 Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344 Nationwide News Pty Limited v Naidu; ISS Security Pty Ltd v Naidu (2007) 71 NSWLR 471 Ofria v Cameron (No. 2) [2008] NSWCA 242 Rockcote Enterprises Pty Limited v FS Architects Pty Limited (No. 2); Carelli v FS Architects Pty Ltd (No. 2) [2008] NSWCA 205 Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Co Pty Limited (2001) 53 NSWLR 626 Rushcutters Bay Smash Repairs Pty Ltd v H McKenna Netmakers Pty Ltd [2003] NSWSC 670 Sabah Yazgi v Permanent Custodians Ltd (No. 2) [2007] NSWCA 306 Shang v Zhang (No. 2) [2007] NSWSC 1355 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Vale v Eggins (No. 2) [2007] NSWCA 12 Waters v PC Henderson (Australia) Pty Ltd (1994) 254 ALR 328 Category: Costs Parties: (2012/374893) Esined No. 9 Pty Ltd (first plaintiff) Esined No. 10 Pty Ltd (second plaintiff) Moylan Retirement Solutions Pty Ltd (first defendant) Arch Underwriting at Lloyd's Ltd on behalf of Syndicate 2012 (second defendant) Barbican Managing Agency Limited (third defendant) Hiscox Dedicated Corporate Member Limited (fourth defendant) Liberty Mutual Insurance Europe Limited (fifth defendant)