Dean v Phung [2015] NSWSC 816

Supreme Court New South Wales

Medium Neutral Citation: Dean v Phung [2015] NSWSC 816 Hearing dates: 3 July 2015 Date of orders: 21 July 2015 Decision date: 21 July 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The Plaintiff's notice of motion filed 23 September 2013 be dismissed;

(2) the Plaintiff's notice of motion filed 5 March 2015 be dismissed; and

(3) the Plaintiff pay Guild Insurance Limited's costs of the notices of motion. Catchwords: COSTS – application for costs order against insurer of insolvent defendant – plaintiff sued defendant dentist for grossly excessive dental treatment – insurer conducted defence on behalf of dentist – conceded dental treatment was excessive – plaintiff sued in negligence and assault – plaintiff alleged consent to treatment fraudulently obtained – plaintiff alleged damages not limited by Civil Liability Act because of intentional acts of defendant – defendant admitted negligence but denied assault and fraudulently obtaining consent to treatment – at first instance plaintiff obtained damages for negligence and costs order but balance of claim failed – on appeal plaintiff succeeded in establishing assault and intentional act of defendant – finding that consent procured by fraud also made – plaintiff obtained award of exemplary damages – insurer denied indemnity including for costs at final instance – plaintiff sought costs of proceedings at first instance from insurer – contended that insurer represented that indemnity would not be denied even if fraud or similar conduct established.

HELD: insurer did not make representation – application dismissed. Legislation Cited: - Civil Liability Act 2002 – s 3B(1), s 21 - Civil Procedure Act 2005 – s 98 - Law Reform (Miscellaneous Provisions) Act 1946 – s 6 Cases Cited: - Advanced Arbor Services Pty Ltd v Phung [2009] NSWSC 1331 - Dean v Phung [2009] NSWSC 1333 - Dean v Phung [2011] NSWSC 653 - Dean v Phung [2012] NSWCA 223 - Dean v Phung (No 2) [2013] NSWSC 116 - Demagogue Pty Ltd v Ramensky [1992] FCA 557; 39 FCR 31 - Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39; [2004] 1 WLR 2807 - FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 - HRX Pty Ltd v Scott [2013] NSWSC 451 - Knight v FP Special Assets Ltd (1992) 174 CLR 178 - Lam v Ausintel Investments Australia Pty Ltd (1990) 97 FLR 458 - Murphy v Young & Co's Brewery & Anor [1997] 1 WLR 1591 - QBE Insurance (Australia) Ltd v Hotchin [2013] NSWSC 315 - Selig v Wealthsure Pty Ltd [2015] HCA 18 - TGA Chapman Ltd v Christopher [1998] 1 WLR 12 Category: Principal judgment Parties: Todd Owen Dean – Plaintiff Dr Mark Van Thien Phung – Defendant Guild Insurance Limited (GIL) – Third Party Representation: Counsel: D.R.J. Toomey – Plaintiff B.J.A. Shields – Third Party