CHU UNDERWRITING AGENCIES PTY LTD -v- WISE [2012] WASCA 123

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 123
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:90/2011	Heard:	17 APRIL 2012
Coram:	McLURE P BUSS JA NEWNES JA	Delivered:	15/06/12
No of pages:	29	Judgment Part:	1 of 1
Result:	Answer given by primary judge on issue 4 set aside Issue 4 not determined Otherwise, appeal dismissed
Category:	A
PDF Version

Parties:	CHU UNDERWRITING AGENCIES PTY LTD DOUGLAS RANKIN WISE CAROL JEANETTE McKEOWN ROBERT JOHN McKNOE as Executor of the Estate of DOROTHY MARGARET WISE
Catchwords:	Appeal Insurance contract entered into by strata company Duty of strata company to insure common property under the Strata Titles Act 1985 (WA) Whether registered proprietors entitled to claim under insurance contract pursuant to s 48 of the Insurance Contracts Act 1984 (Cth) Settlement agreement of legal proceedings between strata company and insurer Whether parties to settlement agreement intended to accept settlement sum in full satisfaction of all claims Whether registered proprietors prevented from pursuing legal proceedings for the balance of the claims Effect of settlement agreement on joint tortfeasors Res judicata and cause of action estoppel Whether registered proprietors are privies of strata company Construction of s 33 of the Strata Titles Act 1985 (WA)
Legislation:	Insurance Contracts Act 1984 (Cth), s 48 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Strata Schemes (Freehold Development) Act 1973 (NSW), s 18, s 20 Strata Schemes Management Act 1996 (NSW), s 11, s 87(1)(c) Strata Titles Act 1985 (WA), s 3, s 4, s 17, s 28, s 31, s 32, s 33, s 35, s 36, s 53, s 53B, s 53C, s 53D, s 55, s 56, s 56A, s 58, s 59, s 83 Strata Titles Amendment Act 1996 (WA)
Case References:	Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 Coulls v Bagot's Executor and Trustee Company Ltd [1967] HCA 3; (1967) 119 CLR 460 Federation Insurance Ltd v Wasson [1987] HCA 34; (1987) 163 CLR 303 Owners - Strata Plan No 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169 Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission & Ors [2004] WASC 23 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 Vero Insurance Ltd v Owners of Strata Plan No 69352 [2011] NSWCA 138 Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 White v Tyndall (1888) 13 App Cas 263 Zurich Australian Insurance Ltd v Metals & Minerals…

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.

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Details

Case: [2012] WASCA 123
Decision Date: 15 JUNE 2012

CaseChat Overview and Summary

Chu Underwriting Agencies Pty Ltd, an insurance company, appealed against a decision of the Supreme Court of Western Australia in relation to an insurance contract that had been entered into by a strata company. The strata company insured the common property of the strata scheme, and several registered proprietors sought to claim under the insurance contract. The legal issues in this case centred around whether the registered proprietors were entitled to claim under the insurance contract, whether the parties to the settlement agreement intended to accept the settlement sum in full satisfaction of all claims, and whether the registered proprietors were prevented from pursuing legal proceedings for the balance of the claims.

The court considered the effect of the settlement agreement on joint tortfeasors and the principles of res judicata and cause of action estoppel. The court held that the settlement agreement did not prevent the registered proprietors from pursuing legal proceedings for the balance of the claims, as the parties to the settlement agreement did not intend to accept the settlement sum in full satisfaction of all claims. The court also held that the registered proprietors were not privies of the strata company and that the construction of s 33 of the Strata Titles Act 1985 (WA) did not prevent the registered proprietors from pursuing legal proceedings.

The appeal was dismissed in relation to all issues except for issue 4, which was not determined by the primary judge. The court set aside the answer given by the primary judge on issue 4 and remitted the matter to the Supreme Court of Western Australia for further consideration.

Orders

Orders of the court

Answer given by primary judge on issue 4 set aside

Issue 4 not determined

Otherwise, appeal dismissed

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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