Avant Insurance Ltd v Burnie

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Avant Insurance Ltd v Burnie [2021] NSWCA 272

Hearing dates:

11 June 2021

Decision date:

08 November 2021

Before:

McCallum JA and Simpson AJA at [1];
Emmett AJA at [40]

Decision:

(1) Leave to appeal granted.

(2) Appeal allowed.

(3) Orders made by the primary judge set aside.

(4) In lieu thereof, Joinder Motion dismissed with costs.

(5) Respondent to pay Applicant’s costs of the appeal.

(6) If otherwise entitled, Respondent to have an order under the Suitors Fund Act 1951 (NSW).

Catchwords:

INSURANCE – Appeal from decision joining insurer to proceedings – Whether there was an insured liability – Where insured gave no notice of facts that might give rise to claim – Whether contractual obligation to give notice – Whether breach of obligation cured by statute

Legislation Cited:

Acts Interpretation Act 1901 (Cth), s 15AB

Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), ss 3, 4, 5

Insurance Contracts Act 1984 (Cth), ss 40, 54

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Sale of Goods Act1923 (NSW)

Suitors Fund Act 1951 (NSW)

Cases Cited:

CA & MEC McInally Nominees Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2009] 2 Qd R 1; [2001] QSC 388

FAI General Insurance Company Limited v Australian Hospital Care Pty Ltd (2001) 204 CLR 641; [2001] HCA 38

Gosford City Council v GIO General Ltd (2003) 56 NSWLR 542; [2003] NSWCA 34

Guild Insurance Ltd v Hepburn [2014] NSWCA 400

Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; [1997] HCA 53

Tara Burnie v Dr Leslie Blackstock [2020] NSWDC 452

Texts Cited:

Australian Law Reform Commission, Insurance Contracts (Report No 20, 1982)

Category:

Principal judgment

Parties:

Avant Insurance Ltd (Applicant)
Tara Burnie (Respondent)

Representation:

Counsel:
M Windsor SC, R Gambi (Applicant)
A D Campbell, R Wathukarage (Respondent)

Solicitors:
Carter Newell Lawyers (Applicant)
Gerard Malouf & Partners (Respondent)

File Number(s):

2020/264543

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2020] NSWDC 452

Date of Decision:

14 August 2020

Before:

Strathdee DCJ

File Number(s):

2018/229812

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Avant Insurance Ltd (Avant), sought leave to appeal from a decision of the District Court granting leave under section 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to join Avant to proceedings between Ms Tara Burnie and Mr Leslie Blackstock. In those proceedings Ms Burnie sought damages for personal injury allegedly suffered as a result of Mr Blackstock’s alleged medical negligence. At the time of the alleged negligence Mr Blackstock held a Practitioner Indemnity Insurance policy issued by Avant. However, that policy, which was framed as a “claims made and notified” policy, expired without Mr Blackstock notifying Avant of any claim by Ms Burnie or even facts that might give rise to such a claim. Avant…