Solarus Projects v Vero Insurance (No 6) [2014] NSWSC 1264

Supreme Court New South Wales

Medium Neutral Citation: Solarus Projects v Vero Insurance (No 6) [2014] NSWSC 1264 Hearing dates: 1 July 2014 Decision date: 01 July 2014 Jurisdiction: Common Law Before: Campbell J Decision: I refuse the application for indemnity costs. The costs of the directions hearing in accordance with the usual practice will be costs in the cause. Catchwords: COSTS - indemnity costs - application for indemnity costs resulting from conduct of a party Category: Interlocutory applications Parties: Solarus Projects Pty Ltd (Plaintiff) Vero Insurance Limited (Defendant) Representation: Counsel: A Leopold SC with Ms A Kelly (solicitor) (Plaintiff) AS Martin SC with J Hynes (Defendant) Solicitors: DLA Piper Australia (First Plaintiff) Sarvaas Ciappara Lawyers (Second Plaintiff) Carter Newell (Defendant) File Number(s): 2011/154276

EX TEMPORE Judgment 1This is a claim on an insurance policy. Last December, I ordered that the question of whether the first plaintiff was an insured be determined separately in advance of all other questions in the case. 2Since then, there has been an application for leave to appeal from that order which has been dismissed. The application for leave to appeal resulted in the date originally fixed for hearing of the separate question in April this year being vacated. 3The matter came back before me for directions on 27th May when I made orders in relation to the preparation of the separate question for hearing. On the basis that the matter had a three-day estimate, which was the estimate of the defendant having regard to its then intentions about the evidence it wished to lead, I gave the parties leave to approach the Common Law Case Management Registrar to fix a hearing date. The date fixed was for a hearing commencing on 8th December. I think it fair to say that everyone was a little surprised that there was not an earlier date available in the Common Law Division, but that is just a fact of life. 4The main reason for the longer estimate was that the defendant envisaged calling as many as six witnesses. The first plaintiff has always said that its case would be purely documentary. It has complied with the orders that I made on 27th May and served an index and four folders of documents which constitute the evidence it relies on for the determination of the separate question. I am told not every page of every document has to be read. 5Mr Martin SC has explained that, having reviewed the evidence, it is now the defendant's position that it need not call any lay evidence in relation to this separate question. It is true, as Mr Leopold SC reminds me, that I did express some surprise that an issue like that proposed to be heard separately would require relevant evidence from lay witnesses, but I accepted the assurances of counsel on that occasion that it would be necessary. I also expressed some measure of dismay that that evidence was not then ready to go, given that the order had been made in December. 6In any event, it is now agreed that the matter can proceed on the basis of the plaintiff's tender bundle and that the hearing of the separate question will take no more than one day. An application is made by consent for the vacation of the three day listing commencing on 8 December and the allocation of an earlier hearing date with the reduced estimate. I have indicated that I will accede to this application. 7Against this background, Mr Leopold SC applies for the costs wasted on an indemnity basis. This application was foreshadowed in correspondence between the solicitors. 8I accept that there has been a change of position on the part of the defendant, obviously, and I well understand the frustration of the plaintiff and the plaintiff's lawyers at what they see as delay, perhaps delaying tactics. However I have been favoured with the explanation of Mr Martin as to how the change of position came about and I am not satisfied, bearing in mind the seriousness of the allegation, that delaying tactics have been adopted. Nor am I satisfied that the change of position evinces a degree of delinquency in the conduct of the litigation which would justify a special order for costs on an indemnity basis. What has happened might be unfortunate but, in my judgment, it does not rise to a level of concern that justifies the Court exercising a discretion of that type. 9Mr Leopold SC also argues that costs of today should be awarded to the first plaintiff on an indemnity basis. Had the defendant prepared the matter prior to 27 May, it would have realised that it did not want to call the lay witnesses, today's attendance would have been unnecessary, and an earlier hearing date for the determination of the special question could already have been allocated. 10There is much force in learned Senior Counsel's argument but again I am not persuaded, for the reasons I have already given, that the change of position does amount to a level of delinquency that would justify such an order. 11I have used the expression "a level of delinquency". I do not mean to suggest by the use of that expression that I think there is some delinquency but falling short of a serious level of delinquency. I am not persuaded at all that the unfortunate matter does evince any delinquency on the part of the defendant, although I allow myself the comment that it would have been better if the decisions now made had been made earlier. 12I refuse the application for indemnity costs. The costs of the directions hearing in accordance with the usual practice will be costs in the cause.