Moussa v Camden Council (No.4) [2022] NSWSC 1422

Supreme Court New South Wales

Medium Neutral Citation: Moussa v Camden Council (No.4) [2022] NSWSC 1422 Hearing dates: 25 August 2022 Date of orders: 25 August 2022 Decision date: 25 August 2022 Jurisdiction: Common Law Before: Garling J Decision: See [24] Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Reasonableness of the conduct of the parties — Complete capitulation by respondent one day before hearing — Motion not proceeded on — Costs ordered against respondent Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 Cases Cited: Franpina Developments Pty Ltd v John Anthony Arena Pty Ltd [2022] NSWSC 57 Texts Cited: Not applicable Category: Procedural rulings Parties: Danny Moussa (P/A) Camden Council (D1) Cornish Group Spring Farm Pty Ltd (D2) SMEC Testing Services Pty Ltd (In Liq) (D3) Liberty Mutual Insurance Company (R) Representation: Counsel: D Priestley SC / J Burnett (P/A) R Oldfield (D1) M Hall (D2) P Gaffney (R)

Solicitors: Mayweathers (P/A) McCulloch & Buggy (D1) Marsdens Law Group (D2) Wotton + Kearney (D3/R) File Number(s): 2020/359004 Publication restriction: Not applicable

EX TEMPORE Judgment 1. This is an application for costs by the plaintiff with respect to the finalisation of his Motion which was filed on 24 June 2022 in the class action proceedings 2020/00359004. 2. The proceedings were commenced against three defendants. One of those, SMEC Testing Services Pty Ltd (In Liq) ("SMEC") is now - and has been for some years - in liquidation. Leave to proceed against that party was granted by the Court. No appearance has been filed for SMEC, and an issue arose as to whether that company held insurance coverage with respect to the class action proceedings. 3. I note, by way of background, that there are other proceedings on foot between Cornish Group Spring Farm Pty Ltd ("Cornish Group") as plaintiff and SMEC. In those proceedings, SMEC appears. It has appointed the same solicitors to act in that matter as act for the insurer involved in this Notice of Motion. To an extent, I am prepared to infer that some indemnity has been extended to SMEC with respect to the claim made by Cornish Group.