Kriengsak & Anor v Parke Davis & Anor [2003] NSWLC 18

Local Court of New South Wales

CITATION: Kriengsak & Anor v Parke Davis & Anor [2003] NSWLC 18 JURISDICTION: Civil PARTIES: Kriengsak & Anor Parkd Davis & Anor FILE NUMBER: 165151/00 PLACE OF HEARING: Downing Centre DATE OF DECISION: 26/09/2003 MAGISTRATE: Magistrate H Dillon CATCHWORDS: Procedure - Costs - Irregular commencement and continuance of proceedings - Whether Solicitors ought pay client's costs - Insurance - Subrogation - Refusal of plaintiff to lend his name to proceedings - Remedies for subrogated insurers LEGISLATION CITED: aiden Shipping Co v Interbulk Ltd [1986] AC 965 Athanaopoulos v Moseley (2001) 52 NSWLR 262 Australian Workers Union v Bowen (1946) 72 CLR 575 Banque Financiere de la Cite v Parc (Battersea) Ltd [1998] 2 WLR 475 Nilsen v Loyal Orange Trust (1999) 76 IR 180 CASES CITED: Orchard v South Eastern Electricity Board [1987] QB 565 Petersen v Moloney (1951) 84 CLR 91 Procinsky v McDermott and Rogers [1955] 4 DLR 606 Woodside Petrleum Development Pty Ltd v Herew Pty Ltd (1999) 20 WAR 380 at 387 Ridehalgh v Horsefield [1994] Ch 205 Vetris v Cashman (1998) 72 SASR 449 at 458 REPRESENTATION: Mr K Manion i/b Smith Partners Mr S Rares SC i/b Barrie Fudge & Co ORDERS: 1. Costs to follow the event; 2. NRMA (insurer) to pay Defendant's costs in an amount agreed within 28 days or assessed on the indemnity basis from the commencement of proceedings.

Judgement

1 This matter was set down for hearing on 28 March 2002. When the matter was called on, counsel for the plaintiffs was unable to adduce evidence. The claim was consequently dismissed and a verdict entered for the defendants. Apparently anticipating this outcome, the solicitors for the defendants filed a Notice of Motion on 27 March. In summary, that motion, which is the subject now of this judgment, is an application for orders that the plaintiffs' solicitors, or the NRMA (the plaintiffs' insurers), or both, pay the defendants' costs on the indemnity basis, such costs to be agreed or assessed. 2 The grounds on which the motion is brought are that the proceedings were an abuse of process in that the plaintiffs' solicitors are said by the defendants to have purported to act on the plaintiffs' behalf without a proper retainer, and that the true client was the NRMA. 3 Background and facts 4 The proceedings arose out of a motor vehicle collision which took place on 3 July 1999. The plaintiffs' motor vehicle was insured by the NRMA. After the collision it seems that the plaintiffs hired a motor vehicle for four days at a cost of $158.00 from Hertz. The cost of the hire of the vehicle was charged to the NRMA Courtesy Car account. It is common ground that at the time the plaintiffs' motor vehicle was damaged the NRMA operated a scheme under which it provided access to, and paid for the use of, a rental vehicle provided by Hertz pursuant to an agreement reached by NRMA and Hertz. 5 It is also clear that, at that time, the insured's policy specifically excluded coverage of losses which occurred because the insured was unable to use the vehicle in question and "the cost of hiring a vehicle." The policy also had conditions requiring the co-operation of the insured in relation to proceedings brought to recover losses. On page 23 of the policy the condition was expressed in the following way: In the event of a claim, your cooperation is essential. Your obligation to cooperate is outlined … on page 7. [The obligations included giving information and help required by the insurer; the giving of written statements or relevant documents; and the attendance of the insured at court to give evidence.]