TRADERS PRUDENT INSURANCE CO LTD v GUMODIN PTY LTD [1988] NSWCA 159

TRADERS PRUDENT INSURANCE CO LTD v GUMODIN PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 15 February 1988 [1988] NSWCA 159

COSTS motion — disposition of — numerous mentions in Court — proper order — application that costs be reserved — application that costs be costs in appeal — held: (1) Inappropriate to reserve on disposition of motion; desirable that costs orders be made while issues fresh in mind; (2) Costs orders should follow principles; (a) that costs of motions are normally made against party in default; and (b) that costs normally go to successful party; (3) On that basis claimant should have costs.

ORDERS (1) That the costs of and incidental to the motion of the claimant commenced on 2 December 1987 and all subsequent proceedings on the motion be paid by the opponent; and (2) Order (1) is without derogation from the special order made on 8 February 1988 that the costs of and incidental to the proceedings before the Court on that day should be paid by the opponent on a solicitor and client basis.

Kirby P Few matters in the court are more fiercely contested than matters of costs. This is a disputed application for the general costs of a notice of motion. In order to explain the order which I will make, it is necessary to set out briefly the course of the history of this litigation.

The case concerns a claim under an insurance policy which was brought by the appellant-opponent against the respondent-claimant insurer. The proceedings was heard before Lusher J in September 1985. His Honour gave judgment on 20th September 1985. A notice of appeal was filed by the opponent on 16 October 1985. However, that notice of appeal was not served as required by the Rules. Indeed, it was not served until 24 November 1987.

In the meantime, the claimant says that the major asset the subject of the litigation, was transferred by the opponent to a Mr Lewis, the managing director of the opponent, on 18th June 1986. Despite the notice of appeal of which it was ignorant, the claimant proceeded with the taxation of its costs. It appears, by inference, that only the service of the certificate of taxed costs propelled the Opponent into prosecuting seriously the appeal which it had lodged in October 1985.