Court of Appeal
New South Wales
Case Title: CGU Insurance Ltd v Bazem Pty Ltd Medium Neutral Citation: [2011] NSWCA 81 Hearing Date(s): 17 March 2011 Decision Date: 07 April 2011 Jurisdiction: Before: Beazley JA at [1]
Hodgson JA at [2]
Macfarlan JA at [3]Decision: The application for leave to appeal is dismissed with costs.
In relation to the Cross-Summons:
(1) Grant leave to Bazem Pty Ltd (referred to as "the Client") to cross-appeal.
(2) Allow the cross-appeal.
(3) Set aside the order made at first instance that the Client pay the costs of CGU Insurance Ltd ("the Insurer") of the Client's application for leave to amend its Statement of Claim.
(4) Order the Insurer to pay the Client's costs of that application.
(5) Order the Insurer to pay the Client's costs of the Cross-Summons for leave to appeal and of the cross-appeal.
(6) The Insurer to have a certificate under the Suitors' Fund Act , if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: PROCEDURE - civil - joinder of parties - Uniform Civil Procedure Rules r 6.19 - whether primary judge had power to grant leave to join insurer as defendant
Legislation Cited: Architects Act 2003
Bankruptcy Act 1966 (Cth)
Corporations Act 2001 (Cth)
Insurance Contracts Act 1984 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure RulesCases Cited: Anjin No 13 Pty Ltd v Allianz Australia Insurance Ltd [2009] VSC 371
Ashmere Cove Pty Ltd v Beekink (No 2) [2007] FCA 1421; (2007) 244 ALR 534
Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28; [2008] 166 FCR 398
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404
The Owners - Strata Plan No 50530 v Walter Construction Group Ltd (in liq) [2007] NSWCA 124Texts Cited: Category: Principal judgment Parties: CGU Insurance Ltd (Appellant)
Bazem Pty Ltd (First Respondent)
Bureau of Urban Architecture Pty Ltd (Second Respondent)Representation - Counsel: Counsel:
A W Street SC/G O'Mahoney (Appellant)
D S Weinberger (First Respondent)- Solicitors: Solicitors:
Colin Biggers & Paisley (Appellant)
Gadens (First Respondent)
Neville & Hourn Legal (Second Respondent)File number(s): CA 2009/287392 Decision Under Appeal - Court / Tribunal: - Before: Gzell J - Date of Decision: 02 September 2010 - Citation: Bazem Pty Ltd v Bureau of Urban Architecture Pty Ltd; Bureau of Urban Architecture Pty Ltd v Bazem Pty Ltd [2010] NSWSC 978 - Court File Number(s) SC 2009/287392; 2009/289283 Publication Restriction:
Judgment
BEAZLEY JA : I…
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- Case
- [2011] NSWCA 81
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine the scope of Rule 6.19, specifically whether it permitted the joinder of an insurer as a defendant in circumstances where the insured party was already a party to the proceedings. This involved considering the purpose and application of the rule in relation to the joinder of parties and the potential for prejudice or benefit to the existing parties.
The Court of Appeal allowed Bazem Pty Ltd's cross-appeal, finding that the primary judge had erred in their initial order. The Court reasoned that Rule 6.19 was intended to facilitate the efficient and just resolution of disputes by allowing for the joinder of parties who have an interest in the subject matter of the litigation or whose presence is necessary for the court to effectively adjudicate the dispute. The Court concluded that the primary judge had the power to grant leave to join the insurer and that the order setting aside the client's costs of the application for leave to amend the Statement of Claim was appropriate. Consequently, the Court ordered CGU Insurance Ltd to pay Bazem Pty Ltd's costs of that application and the costs of the cross-appeal.
Orders
Orders of the court
The application for leave to appeal is dismissed with costs.
In relation to the Cross-Summons:
(1) Grant leave to Bazem Pty Ltd (referred to as "the Client") to cross-appeal.
(2) Allow the cross-appeal.
(3) Set aside the order made at first instance that the Client pay the costs of CGU Insurance Ltd ("the Insurer") of the Client's application for leave to amend its Statement of Claim.
(4) Order the Insurer to pay the Client's costs of that application.
(5) Order the Insurer to pay the Client's costs of the Cross-Summons for leave to appeal and of the cross-appeal.
(6) The Insurer to have a certificate under the Suitors' Fund Act , if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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