Bauer v Aussie Wanderer Tours Pty Ltd - [2020] WADC 91

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BAUER -v- AUSSIE WANDERER TOURS PTY LTD [2020] WADC 91
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   27 FEBRUARY & 26 MAY 2020
DELIVERED          :   19 JUNE 2020
FILE NO/S:   CIV 3262 of 2017
BETWEEN:   TANJA BAUER
Plaintiff

AND

AUSSIE WANDERER TOURS PTY LTD
First Defendant

REAL AUSSIE ADVENTURES PTY LTD
Second Defendant

THE TRAVEL & MARKETING COMPANY GMBH (HRB 19981 HANDELREGISTER TRAUNSTEIN GERMANY)
Third Defendant

Catchwords:

Validity of service contrary to Corporations Act s 500(2) - Joinder of insurer of de-registered company - Limitation defence of insured available to insurer - 'Accrued right of limitation'

Legislation:

Corporation Act 2001 (WA), s 601AG, s 500(2)
Rules of the Supreme Court 1971 (WA), O 7 r 1

Result:

QBE Insurance (Australia) Ltd be joined as a defendant to this action

Representation:

Counsel:

Plaintiff	:	Mr J G M P Fiocco & Dr G Janssen
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Non-party	:	Mr J P Wilson

Solicitors:

Plaintiff	:	Janssen & Maluga Legal
First Defendant	:	Not applicable
Second Defendant	:	Not applicable
Third Defendant	:	Not applicable
Non-party	:	Gilchrist Connell

Case(s) referred to in decision(s):

Alinta 2000 Ltd v Petkov [2012] WASCA 258
Allianz Australia Insurance Ltd v Mercer [2014] TASFC 3
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158
Commonwealth of Australia v Verwayen [1990] HCA 39
Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11

PRINCIPAL REGISTRAR MELVILLE:

Background

By a generally endorsed writ dated 5 September 2017 the plaintiff commenced proceedings against the defendants for damages as a result of serious spinal injuries she suffered as a result of the defendants' alleged breach of contract and alleged negligence.
In her statement of claim the plaintiff alleges that pursuant to a contract she entered into with the third defendant The Travel & Marketing Company GMBH (HRB 19981 Handelregister Traunstein Germany) (TMC), a company incorporated in accordance with the laws of the Federal Republic of Germany, TMC sold and booked a guided tour for her, was to perform the contract itself and through its agents being the first and second Defendants and arranged for the tour to be 'delivered by either the First Defendant or the Second Defendant…'.
At par 4 of the statement of claim the plaintiff alleges the second defendant (Aussie Adventures) was the Australian booking agent for TMC and that Aussie Adventures engaged the first defendant (Aussie Wanderer) to conduct the guided tour.
The plaintiff suffered her injuries on the guided tour on 6 September 2014, when she slipped and fell several metres while navigating through a slippery narrow pathway in the Karijini National Park.
The writ, whilst issued on 5 September 2017 and valid for service for 12 months thereafter, was not served on Aussie Wanderer in that period. On 5 June 2018 Aussie…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bauer v Aussie Wanderer Tours Pty Ltd

Details

AGLC: Bauer v Aussie Wanderer Tours Pty Ltd [2020] WADC 91
Case: [2020] WADC 91
Decision Date: 19 JUNE 2020

CaseChat Overview and Summary

In the matter of Bauer v Aussie Wanderer Tours Pty Ltd, the dispute involved the validity of service of proceedings against a de-registered company and the joinder of an insurer of the company. The case was heard in the Federal Circuit Court. The plaintiff, Bauer, had commenced proceedings against Aussie Wanderer Tours Pty Ltd for a contractual claim. The company had been de-registered prior to service, and service was effected on an address listed in the Australian Business Register as the last known address of the company. The insurer of the de-registered company, however, sought to intervene in the proceedings on the basis that the claim had accrued prior to the de-registration and that any limitation defence available to the company would also be available to the insurer.

The primary legal issue before the court was whether the service of proceedings was valid under the Corporations Act, specifically section 500(2), and if the insurer could be joined as a party in the proceedings. The court also needed to determine whether the insurer could rely on a limitation defence based on an accrued right of limitation.

The court found that the service of proceedings was valid as it complied with the requirements of section 500(2) of the Corporations Act, which permits service on the last known address of a de-registered company. The court further held that the insurer could be joined as a party in the proceedings as it was entitled to rely on any limitation defence available to the de-registered company. The court reasoned that since the claim accrued prior to the de-registration, the insurer had an accrued right of limitation which it could assert. This right was not extinguished by the de-registration of the company, and the insurer was entitled to defend the proceedings on the basis of limitation.

The court's decision confirmed the validity of the service of proceedings and the joinder of the insurer. The insurer was permitted to intervene and assert any limitation defence available to the de-registered company. The court did not provide specific orders in the text provided but would likely order the insurer's intervention and allow the limitation defence to be considered at the substantive hearing of the claim.

Orders