Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 2) [2019] NSWCA 19

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 2) [2019] NSWCA 19 Hearing dates: On the papers Date of orders: 19 February 2019 Decision date: 19 February 2019 Before: Beazley P; Meagher JA; Leeming JA Decision: 1. The appeal be allowed in part as to grounds 1.1, 3.1, 3.2, 4 and 5 of the Notice of Appeal filed on 9 March 2018. 2. The cross-appeal be dismissed. 3. The respondent further indemnify the appellant under the insurance policy issued by the respondent to the appellant, entitled "Property Damage & Business Interruption" and numbered AU00002167PR14A (ISR Policy) by paying a sum of $7,193,141 to the appellant in respect of the appellant's losses suffered as a result of a storm occurring on 25 April 2015 at 77 Peter Brock Drive, Eastern Creek, New South Wales. 4. The respondent pay the appellant interest in the sum of $917,762.71 pursuant to section 57 of the Insurance Contracts Act 1984 (Cth) and regulation 32 of the Insurance Contracts Regulation 1985 (Cth) until 25 January 2019 and thereafter at a rate of $1083.90 per day until the sum in order 3 has been paid. 5. Order 4 made on 13 February 2018 in the Supreme Court of New South Wales proceedings 2015/281297 be set aside and in lieu thereof order that the respondent pay 90% of the appellant's costs in proceedings 2015/281297, assessed on the ordinary basis. 6. The respondent pay 80 per cent of the appellant's costs of the appeal and cross-appeal. Catchwords: COSTS AND CONSEQUENTIAL ORDERS – where appeal allowed in part – where parties agreed as to orders giving effect to judgment of the Court of Appeal save as to costs of first instance proceedings – where necessary to re-exercise discretion as to those costs – respondent to pay 90% of appellant's costs of proceedings at first instance Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2018] NSWCA 342 Reid, Hewitt & Co v Joseph [1918] AC 717 Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; (1994) 254 ALR 328 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 Texts Cited: N/A Category: Costs Parties: Mobis Parts Australia Pty Ltd (Appellant/First Cross Respondent) XL Insurance Company SE (Respondent/Cross Appellant) AIG Europe Limited (Second Cross Respondent) UNIQA Versicherungs AG (Third Cross Respondent) Representation: Counsel: DS Weinberger (Respondent/Cross Appellant)