Ali v Insurance Australia Limited

District Court

New South Wales

Medium Neutral Citation:

Ali v Insurance Australia Limited [2021] NSWDC 369

Hearing dates:

23 July 2021

Date of orders:

6 August 2021

Decision date:

06 August 2021

Jurisdiction:

Civil

Before:

J Smith SC, DCJ

Decision:

(1)   The answer to the separate question is yes.

(2)   The plaintiff should pay the defendant’s costs of the motion.

Catchwords:

INSURANCE – INTERLOCUTORY – Separate question – s 14 Limitation Act

Legislation Cited:

Limitation Act 1969 (NSW)

Uniform Civil Procedure Rule

Cases Cited:

Globe Church Incorporated v Allianz Australia Insurance Ltd (2019) 99 NSWLR 470

Category:

Procedural rulings

Parties:

Mukhtar Ali (Plaintiff)
Insurance Australia Limited (Defendant)

Representation:

Counsel:
Mr T Castle SC (Plaintiff)
Ms A Horvath (Defendant)

Solicitors:
LMI Legal (Plaintiff)
Turks Legal (Defendant)

File Number(s):

2019/323518

Publication restriction:

Nil

Judgment

1. In June 2013 the plaintiff took out a home and contents insurance policy with the defendant in respect of his home at Bonnyrigg Heights. He claims that on 9 October 2013 an unknown person or persons broke into his home, stole goods from it and caused damage to the house and contents.

2. The following day he made a claim under the insurance policy. On 20 May 2014 the defendant denied cover. It was not until 16 October 2019 that the plaintiff commenced proceedings in this court seeking damages for the defendant’s failure to comply with its obligations under the policy. In its defence, the defendant contends, amongst other things, that the proceedings were brought out of time and are barred by s 14 of the Limitation Act 1969 (NSW). That provision states:

14 General

(1)   An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims--

(a)   a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed,

(b)   a cause of action founded on tort, including a cause of action for damages for breach of statutory duty,

(c)   a cause of action to enforce a recognizance,

(d)   a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.

(2)   This section does not apply to--

(a)   a cause of action to which section 19 applies, or

(b)   a cause of action for contribution to which section 26 applies.

(3)   For the purposes of paragraph (d) of subsection (1), "enactment" includes not only an enactment of New South Wales but also an enactment of the Imperial Parliament, an enactment of another State of the Commonwealth, an enactment of the Commonwealth, an enactment of a Territory of the Commonwealth and an enactment of any other country.

(Emphasis in original)

3. On 26 March 2021 the Judicial Registrar ordered pursuant to UCPR ^[1] 28.2, by consent,…