374, 376 New South Head Road Pty Ltd v SMLXL Projects (NSW) Pty Ltd

In the case of 374, 376 New South Head Road Pty Ltd v SMLXL Projects (NSW) Pty Ltd, the plaintiff sought leave to sue the second defendant, the insurer, under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). The plaintiff was contesting the alleged breaches of contract by the first defendant, who was responsible for the design and construction of building works. The first defendant had since entered into liquidation. The plaintiff sought to hold the second defendant, the insurer, accountable if the first defendant were found liable for the alleged contract breaches.

The court had to determine whether the plaintiff had established a prima facie case that the first defendant would be entitled to indemnity from the second defendant if found liable to the plaintiff. The legal issue hinged on whether the plaintiff could proceed against the insurer under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) when the first defendant was in liquidation. The court needed to examine the provisions of the Act and the terms of the design and construct professional indemnity insurance policies held by the second defendant.

The court examined the relevant provisions of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) and found that the plaintiff had not demonstrated an arguable case that the first defendant would be entitled to indemnity from the second defendant. The court concluded that the plaintiff had not provided sufficient evidence to show that the first defendant would have been indemnified by the second defendant if found liable to the plaintiff. Consequently, the court dismissed the application for leave to proceed against the second defendant insurer.

The court made an order dismissing the plaintiff's application for leave to proceed against the second defendant insurer under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). The plaintiff was also ordered to pay the second defendant's costs of the application.