Kader v Tower Life Australia Limited [2005] NSWDC 7

New South Wales District Court

CITATION: Kader v Tower Life Australia Limited [2005] NSWDC 7

HEARING DATE(S): 26-28/09/05 EX TEMPORE JUDGMENT DATE : 29 September 2005

JURISDICTION: Civil

JUDGMENT OF: Rein SC DCJ

DECISION: See [18]-[19].

CATCHWORDS: Costs - Sickness and accident policy of insurance - Order for indemnity costs sought by defendant insurer and its agent following plaintiff's decision not to proceed

LEGISLATION CITED: Insurance Contracts Act 1984 (Cth), s 29

Colgate-Palmolive Co v Cussons Pty Limited (1993) 46 FCR 225; 118 ALR 248 Edwards Madigan Torzillo Briggs Pty Limited v Stack [2003] NSWCA 302 CASES CITED: Latoudis v Casey (1990) 170 CLR 534 Minister for Immigration; Ex parte Lai Qin (1997) 186 CLR 622 Onetel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548 Tetijo Holdings Pty Limited v Keeprite Australia Pty Limited (FCA 3 May 1991 unreported)

Mahmoud Abdul Kader (Plaintiff) PARTIES: Tower Life Australia Limited (First Defendant) Rs Bhinder & Associates (Second Defendant) Raguhjit Singh Bhinder (Third Defendant)

FILE NUMBER(S): 5711/03

Mr Porthouse (Plaintiff) COUNSEL: Mr Seton SC (First Defendant) Ms Collins; Ms Gerace (Second and Third Defendants)

Kheir & Associates (Plaintiff) SOLICITORS: Nicholas G Pappas & Co (First Defendant) Minter Ellison (Second and Third Defendants)

JUDGMENT

1 HIS HONOUR: The plaintiff, in December 1998, took out a sickness and accident policy with the first defendant Tower Life Pty Limited, which I shall refer to as Tower, and made a claim on the policy which Tower rejected. The Plaintiff joined the second and third defendants on the basis that if the policy did not respond for reasons asserted by Tower then either the second or third defendant was liable for that failure. The second defendant was Tower's agent, and the third defendant, a director, and, I infer, shareholder of the second defendant, although he had no involvement in the arranging of insurance for the plaintiff.