Syed v Crumpton (No 2) [2016] NSWSC 723

Supreme Court New South Wales

Medium Neutral Citation: Syed v Crumpton (No 2) [2016] NSWSC 723 Hearing dates: On the papers Date of orders: 07 June 2016 Decision date: 07 June 2016 Jurisdiction: Common Law Before: Schmidt J Decision: NRMA ordered to pay Mr Syed's costs of the motion other than the costs thrown away by reason of the amendment to his statement of claim, permitted by the order made on 27 April 2016. Catchwords: PROCEDURE – costs – departure from the usual order sought – orders made Legislation Cited: Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Syed v Crumpton [2016] NSWSC 500 Category: Costs Parties: Ruman Syed (Plaintiff) Lee Thomas Crumpton (First Defendant) Insurance Australia Limited t/as NRMA Insurance (Second Defendant) Representation: Solicitors: Shanahan Tudhope (Plaintiff) Curwoods Legal Services Pty Ltd (Second Defendant) File Number(s): 2015/26947 Publication restriction: No

Judgment 1. In April 2016 I dealt with a motion by which NRMA sought to have the relief sought against it by Mr Syed struck out in accordance with Rule 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) and in the alternative, the proceedings against it dismissed under Rule 13.4 (see Syed v Crumpton [2016] NSWSC 500). 2. NRMA failed to make out its case, which depended on the proper interpretation of the blameless accident provisions of the Motor Accidents Compensation Act 1999 (NSW). The result was that its motion was dismissed and Mr Syed was given leave to amend his statement of claim, NRMA having accepted that if its motion failed, he had to be given leave to squarely raise the dispute over whether his policy covers the injuries he suffered in a motorbike accident. 3. That concession was properly made because Mr Syed had been injured when his bike struck a wallaby which had been thrown to the road after it was struck by the car in front of him. He had made a claim under his policy, which NRMA had denied. The statement of claim advanced a claim that the blameless accident provisions of the Motor Accidents Compensation Act applied to the accident. Whether the policy covered the claim Mr Syed had made for his injuries, depended on the proper construction of those provisions. 4. There is now a dispute about the proper costs order. The usual order under the Rules is that costs follow the event. Mr Syed accepts that there should be a departure from the usual position. He seeks an order that NRMA pay his costs of the motion, save for costs thrown away by reason of the amendment to his statement of claim. NRMA seeks an order that each party should bear their own costs of the motion. 5. There is no issue that under s 98 of the Civil Procedure Act 2005 (NSW) the Court has the discretion to make a costs order which is just in the circumstances. 6. The real dispute lying between the parties was over whether NRMA had liability under the compulsory third party insurance policy Mr Syed had taken out, for the accident in which he was involved, in the event that it was found to be a blameless accident. NRMA had denied liability under the policy for the claim which he made in respect of his accident. 7. Mr Syed's statement of claim pleaded reliance on s 113 of Motor Accidents Compensation Act. I concluded that it was not relevant (see April judgment at [56]). NRMA's motion failed, nevertheless, because the construction of the Motor Accidents Compensation Act for which it contended could not be accepted. That was what occupied the majority of the hearing of the motion. 8. Accordingly, Mr Syed's concession that he is not entitled to a costs order for the costs thrown away by his misplaced reliance on s 113 was properly made. He succeeded, however, in resisting NRMA's motion. The just order in those circumstances is that it should otherwise pay the costs of the motion on which it failed.