Berry v Al Jabour

[2019] NSWDC 959

District Court

New South Wales

Medium Neutral Citation:

Berry v Al Jabour [2019] NSWDC 959

Hearing dates:

30 September 2019

Date of orders:

30 September 2019

Decision date:

30 September 2019

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   Make order 1 in the notice of motion filed 17 May 2019 joining AAMI as a party.

(2)   Costs be costs in the cause.

(3)   AAMI be directed to file and serve within 28 days an affidavit explaining the entitlement of AAMI to act as indicated in the last three paragraphs on page 1 of the letter of Moray & Agnew to Mrs Nima Al Jabour dated 13 August 2019.

Catchwords:

CIVIL PROCEDURE — parties — joinder – joinder of insurer – claim allegedly not made in good faith – dispute as to whether plaintiff in car – car driven by wife

Legislation Cited:

CivilProcedure Act 2005, s 56

MotorAccidents Compensation Act 1999, s 119

Cases Cited:

Hamad Abu-Ahmed v Wally El Riche (District Court (NSW), Norton SC DCJ, 4 February 2019, unrep)

Ishak v Taoube [2019] NSWDC 46

Virski v Virski (Supreme Court (NSW), 20 March 1998, unrep)

Category:

Procedural rulings

Parties:

Alex Berry (plaintiff/second respondent on notice of motion)
Nima Al Jabour (defendant/first respondent on notice of motion)
AAI Limited trading as AAMI (applicant on notice of motion)

Representation:

Counsel:
Mr G Schipp (plaintiff/second respondent on notice of motion)
Mr M A Cleary (applicant on notice of motion)

Solicitors:
Prominent Lawyers (plaintiff/second respondent on notice of motion)
Moray & Agnew Lawyers (applicant on notice of motion)

File Number(s):

2019/59261

Publication restriction:

None

Judgment

1. The Compulsory Third Party Insurer, AAMI, seeks to be joined as a party to this litigation. Alex Berry, also known as Mohammed Al Jabour and Khalil Alnajjar, who is the plaintiff, claims to have been injured when a car driven by his wife, Nima Al Jabour, the defendant, collided with the rear of a vehicle driven by Chak Kwan Ying

2. Mr Berry and Ms Al Jabour assert in a statement to AAMI that Mr Berry was in the front passenger seat at the time of the collision. Mr Berry sought medical treatment the day after the collision, and a police record made some months after the accident indicates that he was injured in the collision.

3. On the other hand, Mr Ying says that Ms Al Jabour and a young child sitting in the rear restraint seat were the only passengers in Ms Al Jabour’s vehicle, and that there was no one in the front passenger seat at the time of the collision.

4. AAMI asserts that the claim is not made in good faith in that Mr Berry was not in the vehicle at the time of the collision.

5. Section 119 of the Motor Accidents Compensation Act 1999 allows joinder of the insurer. It provides:

“119Joinder of insurer where false claim alleged

(1)  If:

(a)  court proceedings have been commenced against a person in respect of a claim, and

(b)…