Central Negev Properties Pty Ltd v QBE Insurance (Australia ) Limited

[2012] VCC 1871

IN THE COUNTY COURT OF VICTORIA Revised from transcript of oral reasons
Not Restricted

AT MELBOURNE

CIVIL DIVISION
COMMERCIAL LIST
GENERAL DIVISION

Cases No. CI-11-04369

Central Negev Properties Pty Ltd	Plaintiff
v
QBE Insurance (Australia) Limited	Defendant

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2012
DATE OF RULING:	13 November 2012
CASE MAY BE CITED AS:	Central Negev Properties Pty Ltd v QBE Insurance (Australia ) Limited
MEDIUM NEUTRAL CITATION:	[2012] VCC 1871

REASONS FOR RULING

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APPEARANCES:	Counsel	Solicitors
For the	Mr M. Gronow	Williams Winter
For the Defendant	Mr A. Klotz	Norris Coates

HER HONOUR:

1       Mr Gronow, Counsel for the plaintiff, indicated this morning that he wished to rely on a proviso to clause 7 of the relevant insurance policy. 

2       Given it appeared to me that the matter raised was a fresh matter, I invited him to provide a draft reply which clearly set out any material facts he relied upon in support of this new matter.  He has now provided that document.  As I understand it, it was also provided to Mr Klotz, Counsel for the defendant, over the luncheon adjournment and I have examined it and heard from both Counsel.

3       Having examined the document, it does not appear to raise any fresh evidentiary matters. 

4       Mr Klotz, however, has objected to its reception on the basis of its  lateness; that it is distracting; and also  that reliance on the proviso is misconceived.

5       I am not able to be satisfied that the matter raised is misconceived at this stage.

6       The matter raised is certainly late and distracting.  However, the defendant was unable to point to  any actual prejudice by reason of the filing of the reply.  As highlighted by Mr Gronow, the draft reply appears to rely on matters already the subject of the existing pleadings. 

7       It is undesirable for matters such as this to be raised, given the relatively advanced stage of the trial (which is that the defendant has closed its case).[1] 

[1] See generally Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175.

8       However, given, in particular:

·     the absence of any identifiable prejudice to the defendant;

·     that the matter appears to raise a question of law and does not raise any new evidenciary matters;

·     that there may be substantial prejudice to the plaintiff if it is prevented from relying on the proviso,        

I am prepared to grant leave to the plaintiff to file a reply substantially in the form of the document that has been provided to me by 10 am tomorrow morning.

9       If it transpires, contrary to my views above, that there is any prejudice to the defendant, I invite the defendant to raise it as soon as it becomes apparent, and I will endeavour to manage the trial accordingly.