Allianz Australia Insurance Limited v Habib (No 2) [2015] NSWSC 1870

Supreme Court New South Wales

Medium Neutral Citation: Allianz Australia Insurance Limited v Habib (No 2) [2015] NSWSC 1870 Hearing dates: 4 December 2015 Date of orders: 04 December 2015 Decision date: 04 December 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Order 4 made by the Court on 20 November 2015 be set aside.

(2) Order that the first defendant pay 40% of the plaintiff's costs of the proceedings, including 40% of the costs of the first defendant's notice of motion filed 27 November 2015.

(3) Order that that notice of motion filed 27 November 2015 be otherwise dismissed. Catchwords: COSTS – judicial review of CARS assessment – plaintiff insurer successful – only successful on limited grounds – plaintiff recover 40% of its costs – Suitors' Fund Act – whether CARS assessor is a "court" – whether judicial review proceedings are proceedings by way of appeal. Legislation Cited: - Motor Accidents Compensation Act 1999 (NSW) – s 62, s 94.4 - Suitors' Fund Act 1951 (NSW) – s 6 - Uniform Civil Procedure Rule 36.16.3(a) Cases Cited: - AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272 - Allianz Australia Insurance Limited v Sprod [2012] NSWCA 281; 81 NSWLR 626 - Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 - Henderson v QBE Insurance (Australia) Limited [2013] NSWCA 480 - Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 - Parsons, Ex parte; Suitors' Fund Act, Re (1952) 69 WN (NSW) 380 Category: Costs Parties: Allianz Australia Insurance Limited – Plaintiff Bassam Habib – First Defendant Motor Accidents Authority of New South Wales – Second Defendant Hugh Macken, in his capacity as Claims Assessor of the MAA – Third Defendant Representation: Counsel: A. Poljak – Plaintiff S.J. Roulstone – First Defendant Submitting appearance filed 24.06.15 – Second and Third Defendants