New Cap Reinsurance Corporation Limited (in Liq) v Azmin Firoz Daya [2012] NSWSC 1205

Supreme Court New South Wales

Medium Neutral Citation: New Cap Reinsurance Corporation Limited (in Liq) v Azmin Firoz Daya [2012] NSWSC 1205 Hearing dates: 4 August 2012 Decision date: 08 August 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Plaintiff to pay fourth defendant's costs of the discontinued proceedings; interest to be paid on such costs Catchwords: COSTS - where plaintiff sought leave to discontinue proceedings - UCPR r 42.19 - whether the court should depart from ordinary rule that plaintiff pay defendant's costs upon discontinuance - factors to consider in departing from ordinary rule - where plaintiff discontinued against defendant having settled with his insurers - whether impecunious defendant was entitled to continue to defend proceeding once insurer was joined - where defendant has separate defences from insurers - where plaintiff achieved practical success against insurers through defendant - where plaintiff settled with insurer on terms that it would discontinue against defendant

COSTS - interest - Civil Procedure Act s 101 - whether interest on costs should be payable - where party entitled to costs has been out of pocket for some time Legislation Cited: (Cth) Corporations Act 2000, s 588G, s 588M, s 588H, s 1318 (NSW) Law Reform (Miscellaneous Provisions) Act 1946, s 6(4) (NSW) Uniform Civil Procedure Rules 2005, r 42.19 (NSW) Civil Procedure Act 2005, s 101 Cases Cited: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 Metsikas v Quirk [2010] NSWSC 756 Cummins v Australia Jockey Club Ltd [2009] NSWSC 254 East Mark Holdings Pty Ltd v Owners Strata Plan 74602 [2009] NSWSC 1483 Re Minister For Immigration and Ethic Affairs Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 Hexiva Pty Ltd v Lederer [2006] NSWSC 1259 Wood v Inglis [2010] NSWSC 749 Category: Costs Parties: New Cap Reinsurance Limited (in liquidation) - 1st Plaintiff John Raymond Gibbons (liquidator) - 2nd Plaintiff Azmin Firoz Daya - 1st Defendant Paul Laurence Williams - 2nd Defendant Udayan Daniel Ghose - 3rd Defendant William Peck - 4th Defendant CX Reinsurance Company Limited - 5th Defendant GE Frankona Reinsurance Limited - 6th Defendant Aviva Insurance Limited - 7th Defendant David Jonathan Marshall & Ors (Lloyd's Syndicate No. 39] as lead underwriters at Lloyd's - 8th Defendant: Royal & Sun Alliance plc - 9th Defendant Certain Underwriters at Lloyd's - 10th Defendant International Insurance Company of Hannover Ltd - 11th Defendant Representation: Counsel: A W Street SC - Plaintiff L Gor - Fourth Defendant Solicitors: Henry Davis York - Plaintiffs HWL Ebsworth Lawyers - 5th to 11th Defendants File Number(s): 2005/259074