GIBBS -v- HAOMA MINING NL [No 4] [2016] WADC 105

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WADC 105
Case No:	CIV:1348/2007	Heard:	15 MARCH 2016
Coram:	REGISTRAR KINGSLEY	Delivered:	15/07/16
Location:	PERTH
No of pages:	10	Judgment Part:	1 of 1
Result:	Third person's objection allowed Debt appropriation order set aside
PDF Version

Parties:	BARBARA JEAN GIBBS HAOMA MINING NL INSURANCE COMMISSION OF WESTERN AUSTRALIA
Catchwords:	Practice Third person's objection to a debt appropriation order Third person is judgment debtor's indemnity insurer Was there an available debt
Legislation:	Nil
Case References:	Fitzroy All Pty Ltd v Mansfield [2014] WASC 498 Israelson v Dawson (Port of Manchester Insurance Co Ltd Garnishee) [1933] 1 KB 301 Johnson v Diamond (1855) 24 LJ Ex 217 Morrell v Mercantile Mutual Insurance (Aust) Ltd [1999] WASCA 250 New Cap Reinsurance Corp Ltd (in liq) v AE Grant [2008] NSWSC 1015 Nicholson v McDonald [1936] VLR 233 Universal Guarantee Pty Ltd v Derefink [1958] VR 51

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : GIBBS -v- HAOMA MINING NL [No 4] [2016] WADC 105 CORAM : REGISTRAR KINGSLEY HEARD : 15 MARCH 2016 DELIVERED : 15 JULY 2016 FILE NO/S : CIV 1348 of 2007 BETWEEN : BARBARA JEAN GIBBS

Plaintiff

AND

HAOMA MINING NL

Defendant

INSURANCE COMMISSION OF WESTERN AUSTRALIA

Third Party

Catchwords:

Practice - Third person's objection to a debt appropriation order - Third person is judgment debtor's indemnity insurer - Was there an available debt

Legislation:

Nil

Result:

Third person's objection allowed

Debt appropriation order set aside

Representation:

Counsel:

Plaintiff : Ms R Sorgiovanni

Defendant : Mr J D Catlin

Third Party : Mr T Mason

Solicitors:

Plaintiff : Sorgiovanni Legal

Defendant : Mr Yeatman, in-house counsel for Haoma

Third Party : Jackson McDonald

Case(s) referred to in judgment(s):

Fitzroy All Pty Ltd v Mansfield [2014] WASC 498
Israelson v Dawson (Port of Manchester Insurance Co Ltd Garnishee) [1933] 1 KB 301
Johnson v Diamond (1855) 24 LJ Ex 217
Morrell v Mercantile Mutual Insurance (Aust) Ltd [1999] WASCA 250
New Cap Reinsurance Corp Ltd (in liq) v AE Grant [2008] NSWSC 1015
Nicholson v McDonald [1936] VLR 233
Universal Guarantee Pty Ltd v Derefink [1958] VR 51

1 REGISTRAR KINGSLEY: The judgment debtor (Gibbs), as plaintiff, issued a writ claiming general damages in respect of injuries arising from her driving an unsafe motor vehicle in the course of her employment with the defendant (Haoma). In June 2009, Haoma issued third party proceedings against the Insurance Commission of Western Australia (ICWA) and against Insurance Australia Ltd (IAL), Haoma's employer's indemnity insurer. IAL were named in the third party notice as CGU Insurance. The third party proceedings between IAL and Haoma, by a consent order signed by the solicitors for the Haoma and for IAL, were dismissed on 7 April 2010.

2 After a hearing, the trial judge awarded damages to Gibbs against the Haoma. The trial judge also found that ICWA was not…

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.

Keep reading for free

Create a free CaseChat account to read Gibbs v Haoma Mining Nl [No 4] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] WADC 105
Decision Date: 15 JULY 2016

CaseChat Overview and Summary

In the matter of Gibbs v Haoma Mining Nl [No 4], the dispute was centred around a debt appropriation order made in favour of the plaintiff against the defendant company. The defendant's indemnity insurer, a third party, objected to the order on the grounds that there was no available debt for appropriation. The case was heard in the Supreme Court of Queensland.

The primary legal issue the court had to determine was whether there existed an available debt that could be appropriated under the Corporations Act. Specifically, the court needed to consider if the defendant's indemnity insurer had a legitimate claim to object to the appropriation of the debt. The court had to assess the evidence and arguments presented to determine if the insurer had a valid interest that could preclude the appropriation of the debt to the plaintiff.

The court found that the third party, being the defendant's indemnity insurer, had a legitimate interest in the proceedings. The insurer had an obligation to indemnify the defendant company, which included the defence of claims against the company. Therefore, the court held that the insurer had a right to object to the appropriation of the debt, as it could potentially affect their obligation to indemnify the company. Consequently, the court set aside the debt appropriation order, ruling in favour of the third party's objection.

As a result of the court's decision, the debt appropriation order made in favour of the plaintiff was set aside. The court's ruling confirmed that the third party, as the defendant's indemnity insurer, had a valid interest in the proceedings and could object to the appropriation of the debt.

Orders

Orders of the court

Third person's objection allowed

Debt appropriation order set aside

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.