RGA Reinsurance Company of Australia Ltd v Westpac Life Insurance Services Ltd (No 2) [2020] NSWSC 1357

Supreme Court New South Wales

Medium Neutral Citation: RGA Reinsurance Company of Australia Ltd v Westpac Life Insurance Services Ltd (No 2) [2020] NSWSC 1357 Hearing dates: On the papers Date of orders: 6 October 2020 Decision date: 06 October 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Defendant to pay plaintiff's costs of the defendant's notice of motion of 28 August 2020. Plaintiff otherwise to pay the defendant's costs of the proceedings Catchwords: COSTS – general rule that costs follow the event – plaintiff not able to show that some other order should be made as to the whole of the costs COSTS – where defendant did not press its motion seeking stay of proceedings – significant part of written submissions addressed to this question – some other order should be made as to part of the costs Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: RGA Reinsurance Company of Australia Ltd v Westpac Life Insurance Services Ltd [2020] NSWSC 1299 Category: Costs Parties: RGA Reinsurance Company of Australia Ltd (Plaintiff) Westpac Life Insurance Services Ltd (Defendant) Representation: Counsel: P S Braham SC with J Dooley (Plaintiff) R G McHugh SC with P M Knowles (Defendant)

Solicitors: Clyde & Co (Plaintiff) MinterEllison (Defendant) File Number(s): 2020/225575

Judgment 1. I gave judgment in this matter on 23 September 2020. [1] These reasons assume familiarity with that judgment. I will use the same abbreviations. 2. I concluded that RGA's summons should be dismissed with costs. [2] 3. No orders have yet been made. 4. RGA sought to make submissions as to whether I should make the costs order foreshadowed in the judgment. 5. The parties have now exchanged submissions on that question. 6. There is no dispute that RGA's summons must be dismissed. 7. On the face of things, costs should follow the event. [3] Westpac Life having succeeded, the ordinary position is that it should have its costs. It is for RGA to show that "some other order should be made as to the whole or any part of the costs". [4] 8. RGA seeks its costs to 11 September 2020 because: 1. it was only on that date that Westpac Life provided it with the Group Insurance Takeover Deed and Group Insurance Transition Services Agreement [5] ; 2. the basis on which RGA failed was my finding that RGA's request for documents was not reasonable [6] ; 3. the context rendering RGA's request to be unreasonable from 11 September 2020 was the provision to it on that date of the two agreements; 4. I did not conclude that RGA's request for documents was unreasonable when it was first made on 4 June 2020; 5. it follows from my judgment that Westpac Life should have provided the two agreements to RGA upon request being made in June 2020; and 6. RGA's request was reasonable when it was made and at the time proceedings were commenced. 1. In those circumstances, RGA submits that Westpac Life should pay its costs up to 11 September 2020, and accepts that it should pay Westpac Life's costs thereafter. 2. A fundamental element in this chain of reasoning is the proposition that it was at all times until 11 September 2020 reasonable for RGA to request documents under the relevant provision in the Treaty. 3. I am not able to reach that conclusion for a number of reasons. 4. First, the range of documents sought by RGA was, at the outset, very much wider than at the hearing before me and changed in ambit from time to time in the weeks leading up to the hearing. 5. Second, a factor in the delay by Westpac Life in producing documents, including the two transaction documents, was the need to establish a confidentiality regime in relation to the Trustees' documents in circumstances where I have accepted that Westpac Life owed a duty of confidentiality to the Trustees. [7] 6. The purpose of the proceedings was to investigate whether Westpac Life had sold or transferred the Policies contrary to the terms of the Treaty in circumstances where, in my opinion, nothing in the documents then available to RGA and to which my attention has been drawn, suggested that there has been a sale or transfer of the Policies. 7. In these circumstances, I am not able to conclude that it was reasonable of RGA to commence and prosecute the proceedings to 11 September 2020 such that it should have its costs to that date. 8. RGA also pointed to the fact that, at the hearing, Westpac Life did not press its motion of 28 August 2020 seeking, on the basis of the dispute resolution clauses in the Treaty, a stay of proceedings. 9. I accept that RGA has incurred costs in relation to that application which have been thrown away by Westpac Life's unexplained failure to prosecute that motion. 10. Because Westpac Life did not press the motion, no time at the hearing was taken up with it. However, a significant part of the written submissions of both parties was addressed to this question. It is also true that the merits of that motion were not determined, but that is because Westpac Life in effect abandoned it. 11. I make the following orders: 1. The proceedings are dismissed. 2. The defendant is to pay the plaintiff's costs of the defendant's notice of motion of 28 August 2020. 3. The plaintiff is otherwise to pay the defendant's costs of the proceedings.