WorkCover Queensland v Asbestos Injuries Compensation Fund Ltd (No 2) [2025] NSWCA 29

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: WorkCover Queensland v Asbestos Injuries Compensation Fund Ltd (No 2) [2025] NSWCA 29 Hearing dates: On the papers Decision date: 03 March 2025 Before: Ward P; Leeming JA; Payne JA Decision: 1. The First Respondent is advised that it is justified in paying the whole of the liability of Amaca Pty Limited in respect of judgments obtained in the Dust Diseases Tribunal of New South Wales, including the liability under and in connection with those judgments to pay pre and post judgment interest and costs, by: (a) Eric Thomas Coveney on 21 February 2024 in proceeding no. 2023/255894 in the Dust Diseases Tribunal of New South Wales; and (b) Barry Edward Davis on 22 February 2024 in proceeding no. 2023/232314 in the Dust Diseases Tribunal of New South Wales. 2. The First Respondent pay the costs of the Appellant, WorkCover Queensland, of the following proceedings: (a) In the Equity Division of the Supreme Court of New South Wales (Case No. 2024/00121682); and (b) In the Court of Appeal of the Supreme Court of New South Wales (Case No. 2024/00372881) to be assessed on a standard basis, excluding WorkCover Queensland's costs of its application for indemnity costs. 3. There be no order as to costs in respect of the Second Respondent and the Third Respondent. Catchwords: COSTS – judicial advice – beneficiaries and non-beneficiary joined – beneficiaries' costs to be paid on indemnity basis – whether non-beneficiary's costs should be paid on indemnity basis – whether non-beneficiary's costs necessarily incurred for benefit of trust – consideration of Re Buckton [1907] 2 Ch 406 Cases Cited: BE Australia WD Pty Ltd (Subject to a Deed of Company Arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 Coveney v Asbestos Injuries Compensation Fund Ltd; Davis v Asbestos Injuries Compensation Fund Ltd; WorkCover Queensland v Asbestos Injuries Compensation Fund Ltd [2024] NSWCA 317 HP Mercantile Pty Ltd v Hartnett [2017] NSWCA 79 Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118 McDonald v Horn [1995] 1 All ER 961 Pohlner v Pfeiffer (1964) 112 CLR 52; [1964] HCA 8 Re Buckton [1907] 2 Ch 406 Warton v Yeo [2015] NSWCA 115 Texts Cited: L Tucker et al, Lewin on Trusts (Sweet & Maxwell, 2020, 20th ed) Category: Costs Parties: WorkCover Queensland (Appellant) Asbestos Injuries Compensation Fund Ltd as trustee for the Asbestos Injuries Compensation Fund (First Respondent) Attorney-General (NSW) (Second Respondent) James Hardie 117 Pty Ltd (Third Respondent) Representation: Counsel: K F Holyoak (Appellant) R Higgins SC with C Tran (First Respondent)