Admiral International Pty Ltd v Insurance Australia Ltd (No 2) [2023] NSWCA 19

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Admiral International Pty Ltd v Insurance Australia Ltd (No 2) [2023] NSWCA 19 Hearing dates: On the papers Date of orders: 20 February 2023 Decision date: 20 February 2023 Before: Bell CJ; Ward P; Macfarlan JA Decision: In proceedings 2018/343393 in the Common Law Division and 2021/341356 in the Court of Appeal, (1) Judgment for the appellant in the amount of $709,570.16 representing: (i) $223,412.16 with respect to the appellant's physical loss, destruction or damage under section 1 of the ISR Policy and claims preparation costs; and (ii) $486,158 for the appellant's business interruption losses from 16 April 2017 under section 2 of the ISR Policy. (2) The respondent to pay interest on $709,570.16 from 8 November 2018 calculated in accordance with s 57 of the Insurance Contracts Act 1984 (Cth). (3) The respondent to pay the appellant's costs of the appeal and in the Court below. (4) Pursuant to r 55.11 of the Uniform Civil Procedure Rules 2005 (NSW) that the monies paid into Court in this proceeding by the appellant as security for the respondent CGU's costs in the sum of $75,000, plus any interest accrued on that sum, are to be paid out to the appellant. In proceedings 2019/191443 in the Common Law Division and 2021/341373 in the Court of Appeal, (1) Judgment for the appellant on the first cross-claim against the first respondent. (2) The first respondent to indemnify the appellant under the Liability Policy (policy no. 10M 7679161) with respect to: (i) Order 1 of the orders made by the primary judge on 8 November 2021 and varied on 15 December 2021, being judgment for the second respondent against the appellant in the sum of $3,583,986.90; (ii) Any order made by the primary judge as to costs payable by the appellant to the second respondent in the proceedings, including order 2 made on 8 November 2021; (iii) The appellant's liability to pay interest to the second respondent pursuant to order 2 made on 15 December 2021; and (iv) The entirety of the appellant's costs of defending the second respondent's claim against the appellant. (3) The first respondent to pay the appellant's costs of the appeal and the first cross-claim in the Court below. Catchwords: COSTS — insurance claim — insurer failed on defence alleging claim arose out of insured's fraudulent or dishonest acts — insurer nevertheless proved at significant expense certain disputed facts relevant to that defence — whether costs orders to be considered on issue basis COSTS — successful insurance claim — whether insured's failure to recover significant part of claim disentitled it to costs Legislation Cited: Insurance Contracts Act 1984 (Cth), ss 13, 48, 57 Uniform Civil Procedures Rules 2005 (NSW), rr 42.1, 42.8(2), 42.19 Cases Cited: Aslan v Stepanoski (No 2) [2022] NSWCA 89 Australian Conservation Foundation v Forestry Commission (1998) 81 ALR 166 Bankstown Football Club Ltd v CIC Insurance Ltd (Supreme Court (NSW), Cole J, 17 December 1993, unrep) Bartier Perry Pty Ltd v Paltos [2021] NSWCA 158 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 Hendriks v McGeoch [2008] NSWCA 53 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 LCA Marrickville Pty Limited v Swiss Re International SE [2022] FCAFC 17 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Real Estate Property Management Pty Ltd v WaterCorp Investments Pty Ltd [2018] NSWCA 194 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39 Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 State of New South Wales v Stanley [2007] NSWCA 330 Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unrep) Category: Costs Parties: In proceedings 2021/341356: