Emanoil Alexiou v Chain and Power International Pty Limited

[2010] NSWSC 1002

CITATION:	Emanoil Alexiou v Chain & Power International Pty Limited & Ors [2010] NSWSC 1002
HEARING DATE(S):	1 September 2010
JUDGMENT DATE :	1 September 2010
JUDGMENT OF:	Garling J
EX TEMPORE JUDGMENT DATE:	1 September 2010
DECISION:	Leave granted to commence proceedings against the insurer. Costs of the motion be costs in the cause.
CATCHWORDS:	PRACTICE & PROCEDURE – Application for leave to commence proceedings against the insurer of an existing defendant – Leave of the Court under s.6(4) of the Law Reform (Miscellaneous Provisions) Act 1946. - COSTS – Usual practice that the costs of the notice of motion be costs in the cause – Whether there are any facts, matters or circumstances sufficient to vary from the usual practice.
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 Corporations Act 2001
CATEGORY:	Procedural and other rulings
PARTIES:	(P) Emanoil Alexiou (D1) Chain & Power International Limited (D2) Shorecode Pty Limited (D3) Fullers Mobile Cranes Pty Limited (R) The Hollard Insurance Company Pty Limited
FILE NUMBER(S):	SC 2009/297640
COUNSEL:	(P) D. Kelly (mention) (D1) No appearance (D2) D. Kelly (D3) D. Kelly (R) J. Whyte
SOLICITORS:	(P) Taylor Scott Lawyers (D1) No appearance (D2) DLA Phillips Fox (D3)Curwoods Lawyers (R) Leslie Taylor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

WEDNESDAY, 1 SEPTEMBER 2010

2009/297640 EMANOIL ALEXIOU v CHAIN & POWER INTERNATIONAL PTY LIMITED & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: In this matter by notice of motion dated 29 July 2010 the applicant, Fullers Mobile Cranes Pty Limited, which is the third defendant in the proceedings, seeks leave pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 to commence proceedings against The Hollard Insurance Company Pty Limited. It also seeks costs.

2 In support of the notice of motion the applicant relies on an affidavit of Emma Roberts sworn 13 July 2010. That is a little over two weeks before the motion was filed. In the affidavit, Ms Roberts deposes to the fact that her client wishes to join by way of a cross-claim the respondent to the motion, The Hollard Insurance Company Pty Limited.

3 The affidavit annexes a draft of the proposed cross-claim. It annexes a copy of the historical search of Chain & Power International Pty Limited which demonstrates that, in August 2007 an administrator was appointed under the Corporations Act 2001, and further, that on 18 September 2007, a deed of company arrangement was entered into. The effect of all this is that the company is in external administration. It has not appeared in the proceedings.

4 The affidavit also annexes a Certificate of Insurance which indicates that The Hollard Insurance Company Pty Limited was an insurer of Chain & Power International Pty Limited pursuant to a policy issued initially on 23 June 2005 for a 12 month period. The policy thereafter was extended from time to time. One of the periods of extension was from 23 June 2006 until 23 August 2006.

5 The plaintiff's accident, which forms the relevant event, upon which the claim against the applicant, Fullers Mobile Cranes Pty Limited, is made, occurred on 2 August 2006.

6 The material attached to the affidavit of Ms Roberts is sufficient to satisfy me that the respondent, The Hollard Insurance Company Pty Limited, was the insurer under a policy of insurance of the company Chain & Power International Pty Limited at the relevant time.

7 An application has been made under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 to enforce the charge created by s 6(1) of that Act on the insurance moneys which relate to the claim made by the Plaintiff.

8 Before an action can be commenced directly against an insurer under s 6(4) of that Act, the leave of the Court is required. Accordingly the notice of motion seeks the orders which I have earlier indicated.

9 The notice of motion, filed on 29 July 2010 was first returnable before the Court on 6 August 2010. On that day, before Registrar Bradford, Mr McCarthy appeared for the applicant, Fullers Mobile Cranes Pty Limited, and mentioned the appearance of the respondent for the motion. The Registrar listed the notice of motion for hearing on 1 September 2010. The Registrar ordered that the other parties be advised of that hearing date by Mr McCarthy.

10 It appears that for reasons which are not entirely satisfactorily explained, the notification of the hearing date was somewhat delayed. As a consequence, The Hollard Insurance Company Pty Limited was not notified of this date for hearing until 19 August 2010.

11 I am informed by both counsel who have appeared this morning for the parties that the consent of The Hollard Insurance Company Pty Limited to being joined, was not forthcoming until this morning. Quite why that it so does not appear in the evidence nor in any agreed statement of facts.

12 However, it is now clear that there is no opposition to the making of the order that Fullers Mobile Cranes Pty Limited have the requisite leave to commence proceedings against the insurer, and in due course I will make that order. The parties are at issue as to what should happen to the notice of motion which has been filed seeking leave to commence the action, in particular, who should pay the costs of the motion.

13 The applicant submits that it should have its costs of the motion because the consent was not forthcoming until this morning. The respondent submits that the costs of the motion should be the costs in the cause.

14 It is not clear to me that the indication of consent to the principal order in the notice of motion, being forthcoming only this morning, has resulted in the applicant approaching this notice of motion in any way different from that than which it otherwise would have.

15 The respondent to the motion has not filed or served any evidence in opposition to the motion. The evidence which the applicant filed clearly demonstrated the existence of an insurance policy. If there was any suggestion of disclaimer of liability under the policy, the onus rested on the respondent to the motion to put on evidence which supported such a claim and to prove that claim.

16 It was necessary for the applicant to seek the Court's leave. The notice of motion had to be listed and ultimately the Court's discretion had to be engaged.

17 In all of those circumstances it seems to me that the proper order to make, and one which is consistent with the usual practice of the Court, is to order that the costs of the notice of motion be costs in the cause. There are no other facts, matters or circumstances which have been brought to my attention which cause me to vary from the Court's usual practice in this respect.

Orders
(1) The third defendant, Fullers Mobile Cranes Pty Limited, has leave pursuant to s 6(4) of the Law Reform Miscellaneous Provisions Act 1946 to commence proceedings against The Hollard Insurance Company Pty Limited.

(2) The third defendant is to file and serve any cross-claim against The Hollard Insurance Company Pty Limited by 4pm on Friday, 3 September 2010.

(3) I order that the costs of the motion be costs in the cause.

(4) I note that the proceedings are listed for directions on 9 September 2010 before the Registrar.

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