QBE Insurance (Australia) Limited v Hotchin & Ors [2013] NSWSC 315

Supreme Court New South Wales

Medium Neutral Citation: QBE Insurance (Australia) Limited v Hotchin & Ors [2013] NSWSC 315 Hearing dates: 30 January 2013 Decision date: 09 April 2013 Jurisdiction: Equity Division Before: Bergin CJ in Eq Decision: Application under s 98 of the Civil Procedure Act dismissed. Catchwords: [LAWYERS] - where it appears that defendants would be unable to pay costs if ordered to do so - criteria for making an order under s 98 of the Civil Procedure Act 2005 - whether in the circumstances such an order should be made against the lawyers representing the defendants that they pay the plaintiff's costs of these proceedings. [FEES] - where principal lawyer in the USA charging a contingency fee of a percentage of the award of damages in separate proceedings in the USA in respect of which indemnity is sought from the plaintiff in these proceedings - whether principal and agent in Australia have an "interest" in the present proceedings - where principal lawyer in the USA and the agent in Australia not charging fees for legal services provided in these proceedings - whether this amounts to "funding" the litigation. [CONDUCT OF THE LITIGATION] - whether either party behaved unreasonably in the conduct of the litigation - where anti-suit injunctions granted in Australia in respect of proceedings in the USA in which the same relief (for indemnity under policy of insurance) sought - where multiple attempts to obtain anti-suit injunctions in the USA in respect of New South Wales proceedings - where opposition to defendants' application for separate questions - where one party putting the other to proof on allegedly incontrovertible facts. [OFFERS OF COMPROMISE] - whether the rejection of the offers of compromise unreasonable. Legislation Cited: Civil Aviation (Carriers' Liability) Act 1959 (Cth) Civil Aviation (Carriers' Liability) Act 1964 (Qld) Civil Procedure Act 2005 Legal Profession Act 2004 Legal Profession Act 2007 (Qld) Legal Profession (Solicitors) Rule 2007 (Qld) Cases Cited: Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26; (2001) 179 ALR 406 Australian Communist Party v Commonwealth ("Communist Party Case") (1951) 83 CLR 1 Bank of New South Wales v Commonwealth ("Bank Nationalisation Case") (1948) 76 CLR 1 Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39; [2004] 1 WLR 2807 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Gore v Justice Corporation Pty Ltd [2002] FCAFC 83; (2002) 119 FLR 429 Hamilton v Al Fayed (No 2) [2002] EWCA Civ 665; [2003] QB 1175 Harry S Bagg's Liquidation Warehouse Pty Ltd v Whittaker (1982) 44 NSWLR 421 Knight v FP Special Assets Ltd (1992) 174 CLR 178 May & Christodoulou [2011] NSWCA 75; (2011) 80 NSWLR 462 Oasis Hotel Ltd and Anor v Zurich Insurance Company (1981) 28 BCLR 230 QBE Insurance (Australia) Limited v Hotchin [2011] NSWSC 681 Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622 Spence v Gerard Malouf & Partners Pty Ltd [2010] NSWSC 764 Category: Costs Parties: QBE Insurance (Australia) Limited (Plaintiff/Applicant) Gregory Robert Hotchin (Administrator of the Estate of the late Brett Andrew Hotchin) (1st Defendant/1st Respondent) Denise Joy Kalin and Roger Hugh Langdon Down (Administrators of the Estate of the late Timothy Ross Langdon Down) (2nd and 3rd Defendants/2nd and 3rd Respondents) Cleary & Lee Pty Ltd (4th Respondent) Patrick Nunan (5th Respondent) Floyd A Wisner (6th Respondent) Representation: DJ Fagan SC/TJ Brennan (Plaintiff/Applicant) AJ Abadee (Defendants and 1st to 5th Respondents) Norton White (Plaintiff) Cleary & Lee (Defendants and 1st to 5th Respondents) File Number(s): 2011/195528 Publication restriction: Nil