Mead & Anor v Allianz Australia Insurance Ltd [2007] NSWSC 500

New South Wales Supreme Court

CITATION : Mead & Anor v Allianz Australia Insurance Ltd [2007] NSWSC 500

HEARING DATE(S) : 15/05/07 JUDGMENT OF : Bergin J

EX TEMPORE JUDGMENT DATE : 15 May 2007

DECISION : Application refused

CATCHWORDS : [MEDIATION] - consensual referral to mediation - order that parties share equally in costs of mediator - mediation unsuccessful - parties settle subsequent to mediation on basis including an order that the defendant pay "the plaintiffs' costs of these proceedings" - application by plaintiffs for order that "costs incurred by the plaintiffs in connection with the court ordered mediation be costs of the plaintiffs of the proceedings on a party/party basis".

CASES CITED : Innovative Agricultural Products Pty Limited & Ors v Richard Crawshaw [1996] 758 FCA 1 Medulla v Abdel Hameed [2003] NSWSC 747

Colin Anthony Mead (first plaintiff) PARTIES : David Patrick Watson (second plaintiff) Allianz Australia Insurance Ltd (defendant)

FILE NUMBER(S) : SC 50143/05

COUNSEL : DJ Fagan SC (first and second plaintiffs) PR Garling SC/G Doherty (defendant)

SOLICITORS : Etheringtons Solicitors (first and second plaintiffs) Tresscox Lawyers (defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BERGIN J

15 MAY 2007

50143/05 COLIN ANTHONY MEAD & ANOR v ALLIANZ AUSTRALIA INSURANCE LIMITED JUDGMENT 1 This is a matter that was listed for hearing for five days commencing on 14 May 2007. That listing was made on 14 November 2006. On that day orders were made vacating a previous trial date of four days on 26 February 2007 for reasons that I do not need to detail. However, on that occasion I made consent orders referring this matter to mediation and that the mediation occur no later than 22 March 2007. There was also an order that "the parties are to share equally in the mediator's costs". 2 The consent orders were varied extending the time within which the mediation was to occur. Mediation took place on 5 April 2007 with the Honourable Trevor Morling QC. That mediation was governed by a Mediation Agreement, the first page of which is in evidence before me. Clause 2 of that Agreement between these parties was as follows: 2. The parties agree to be liable for payment of the mediator's fees in the following proportions: To be borne equally between the parties [the plaintiffs-50% and Allianz-50%] and if the mediation is not successful, then the plaintiffs reserve their rights to make an application at the hearing of Supreme Court of NSW proceedings No 50143/05, or at any relevant time thereafter, that Allianz pay the plaintiffs' costs of the mediation. 3 The mediation was unsuccessful. Offers of Compromise were exchanged on 11 April 2007 and the defendant accepted the plaintiffs' Offer of Compromise on 27 April 2007. The Offer of Compromise made by the plaintiffs was in the following terms: The Plaintiffs offer to compromise these proceedings on the following basis: