DAOUD v GIO GENERAL LIMITED [2012] NSWSC 29

Supreme Court New South Wales

Medium Neutral Citation: DAOUD v GIO GENERAL LIMITED [2012] NSWSC 29 Hearing dates: 1 September 2011 Decision date: 04 April 2012 Before: HALL J Decision: (i) An order that the respondent pay the appellant's costs of the proceedings commenced by Summons in this Court on the ordinary basis. (ii) An order that the order of the Local Court awarding costs for the proceedings in that Court against the appellant be set aside. Catchwords: Costs, where new trial ordered - special circumstances justifying departure from general rule that costs of first trial should abide the second trial - no special circumstances existed. Cases Cited: Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427 at [30] Category: Costs Parties: Nabih DAOUD GIO General Limited Representation: M Campbell (P) J Sleight (D) Peter Michael Ives (P) Hicksons Lawyers (D) File Number(s): 2011/68389 Publication restriction: Nil

Judgment 1HIS HONOUR: Judgment in the principal proceedings in this matter was delivered on 1 September 2011: [2011] NSWSC 1001. The appeal against the Local Court's decision delivered on 2 February 2011 was upheld and the decision was accordingly set aside. An order was made remitting the proceedings to the Local Court for a re-hearing. 2The proceedings in the Local Court concerned an issue as to whether or not the appellant was entitled to rely upon a motor vehicle insurance policy which he took out with the respondent in respect of an accident said to have occurred on 20 September 2008. 3The respondent refused to make payment on the policy on the grounds, inter alia, that the accident had been staged and that any claim made by the appellant upon the policy was fraudulent. 4On the question of the costs of the appeal, I ordered that the respondent pay the appellant's costs of the appeal proceedings in this Court on the ordinary basis. 5There remains the question of the costs of the proceedings in the Local Court. 6I have received written submissions from Ms Campbell of Counsel for the appellant dated 9 September 2011 and written submissions from Mr Sleight of Counsel for the respondent dated 16 September 2011. 7The respondent's submissions annexed a Notice of Orders by the Local Court. That document related to an order for costs in the proceedings in favour of the respondent insurer on an indemnity basis. 8Subsequent to the above submissions, Ms Campbell replied, stating in effect, that it has been agreed between the parties that no order for costs had in fact been made by the Magistrate, observing, in particular, that the transcript had made no reference to an indemnity costs order being made. 9It is clear that the proper exercise of the power with respect to costs requires that any order awarding costs of the Local Court proceedings to the respondent must be set aside in light of the errors of law that vitiated the Local Court's decision. 10Mr Sleight confirmed that the respondent consented to the Summons being amended for the purpose of including a prayer for relief to set aside the costs order at first instance.