[2016] NSWSC 1149

Buses + 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited

(1) Order the plaintiffs to pay the defendants’ costs of the motion, with the intention that these costs be paid by the plaintiffs’ insurer, Zurich Australia Insurance Limited. (2) Make no order as to the costs of the plaintiff or the respective cross-defendants, with the intention that the plaintiffs and the respective cross-defendants are to bear their own costs of the motion.

Catchwords

COSTS – successful application by insured plaintiff for leave for separate legal representation in order to defend the first cross-claim – costs order made requiring plaintiff to pay defendants costs of the notice of motion – application by insured plaintiff for insurer to pay both the defendants costs and its costs of the notice of motion – application resisted by insurer in respect to costs of insured plaintiff – order in principal judgment of benefit to both insured plaintiff and insurer – insurer to pay defendants costs and each party to pay own costs of the notice of motion in respect of insurer and insured plaintiff

Cases cited

Buses + 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited[2016] NSWSC 1017

Legislation cited

Motor Accidents Compensation Act 1999 (NSW), s78

Judgment

[1]
On 22 July 2016 I made orders and published reasons with respect to the notice of motion filed by Buses + 4WD Hire Pty Ltd (Buses), as cross-defendant: Buses + 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited [2016] NSWSC 1017.
[2]
I ordered the plaintiffs to pay the defendants’ costs of the notice of motion, unless an application for a different order was made within seven days.
[3]
Two applications were made. The first was made by Buses + 4WD Hire Pty Ltd (Buses), as cross-defendant, which sought the following orders:
[4]
The second application was made by Zurich Australian Insurance Ltd (Zurich), as the plaintiffs’ insurer, which brings the claim in the plaintiffs’ names pursuant to its right of subrogation under the statutory third party policy. It resisted an order that it be obliged to pay Buses’ costs of the notice of motion. I take its submissions to amount to an acceptance that, as the plaintiffs’ insurer, it would be obliged to pay the defendants’ costs of the motion, which the plaintiffs were ordered to pay.
[5]
Zurich’s obligation and entitlement to bring the proceedings in the names of the plaintiffs arises from s 78 of the Motor Accidents Compensation Act 1999 (NSW). Although the proceedings are brought in the names of the plaintiffs, they are, substantially, brought for the benefit of Zurich. Oz Snow Adventures Pty Limited has cross-claimed against Buses. Buses is not indemnified by Zurich in respect of any liability arising under the cross-claim. Buses’ defence to the cross-claim is not for the benefit of Zurich. Indeed, Zurich itself is a cross-defendant.
[6]
The order sought by Buses in the notice of motion was both for the benefit of Buses and for the benefit of Zurich, since each has different interests, which, as I have found in the principal judgment, make it desirable that Buses have separate representation in its capacity as cross-defendant. However, I do not accept that Zurich ought be required to pay Buses costs of bringing the notice of motion as cross-defendant, since Buses’ application was brought in its own interests and for its own benefit. It was supported by Zurich, for Zurich’s own interests and own benefit.
[7]
I am not persuaded that there is any reason why the costs ought be ordered to be paid forthwith. Accordingly, the ordinary convention that they be paid at the conclusion of the proceedings applies.
[8]
For these reasons I make the following orders as to the costs of the motion.
1. (1)
  Order the plaintiffs to pay the defendants’ costs of the motion, with the intention that these costs be paid by the plaintiffs’ insurer, Zurich Australia Insurance Limited.
2. (2)
  Make no order as to the costs of the plaintiff or the respective cross-defendants, with the intention that the plaintiffs and the respective cross-defendants are to bear their own costs of the motion.