GLG Australia Pty. Ltd. v. The Nominal Defendant & Ors. (No.2) [2004] NSWCA 282

New South Wales Court of Appeal

CITATION : GLG Australia Pty. Ltd. v. The Nominal Defendant & Ors. (No.2) [2004] NSWCA 282 revised - 17/12/2004 HEARING DATE(S) : Matter dealt with on submissions in Chambers JUDGMENT DATE : 23 August 2004

JUDGMENT OF : Hodgson JA at 1; Tobias JA at 22; McColl JA at 23 DECISION : 1. Appeal allowed. 2. Verdict and judgment entered against the Appellant and the Third Respondent in the District Court be set aside. 3. Verdict and judgment for the 2nd Respondent against the 3rd Respondent in the sum of $72,541.98. 4. Verdict and judgment for the 2nd Respondent against the Appellant in the sum of $213,330.92. 5. The First Respondent is to indemnify the Appellant with respect to the verdict and judgment referred to in paragraph 4 above, and pay interest at the court rate on judgment monies in the sum of $132,370.34 paid by the Appellant on 20 May 2003. 6. The Appellant and the Third Respondent are to pay the Second Respondent's costs of the District Court proceedings as agreed or assessed. 7. The First Respondent is to indemnify the Appellant with respect to the costs order referred to in paragraph 6 above. 8. The First Respondent is to pay the Appellant's costs of the District Court proceedings incurred since 31 May 2002. 9. The First Respondent is to pay the Appellant's costs of the appeal. 10. The Second Respondent to bear his own costs of the appeal but to have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS : TORTS - Motor vehicle accident - Scope of third party insurance - Power of court to award interest and costs - INSURANCE - Indemnity against liability in respect of injury - Whether extends to liability of insured to its own lawyers in defending a claim based on injury - Whether extends to interest. Boyle v. The Nominal Defendant (1958) 76 WN(NSW) 598 Club Motor Agency Pty. Ltd. v. Sargent (1969) 118 CLR 658 Commercial & General Insurance Co. Ltd. v. Government Insurance Office of NSW (1973) 129 CLR 374 Emad Trolley Pty. Ltd. v. Shigar [2003] NSWCA 231 Genders v. Government Insurance Office of NSW (1958) 76 WN(NSW) 381 Genders v. Government Insurance Officer of NSW (1959) 102 CLR 563 CASES CITED : GIO Australia Ltd. v. Robson (1997) 42 NSWLR 439 Leo M. Dunn & Sons v. McPhillamy [2000] NSWCA 363 National Vulcan Engineering Insurance Group Ltd. v. Pentax Pty. Ltd. [2004] NSWCA 218 Owen v. State of NSW [2004] NSWCA 165 State Government Insurance Office (Queensland) v. Crittenden (1966) 117 CLR 412 State of New South Wales v. Thomas [2004] NSWCA 52 Yellow Express Carriers Ltd. v. Government Insurance Office of NSW [1960] SR(NSW) 227 PARTIES : GLG Australia Pty. Ltd. - appellant The Nominal Defendant - first respondent FILE NUMBER(S) : CA 40446/03 COUNSEL : Mr. J. Maconachie QC with Mr. N. Polin for appellant Mr. P. Deakin QC with Mr. P. Nolan for the first respondent SOLICITORS :