Reported Decision: 16 ANZ Insurance Cases 61-852241 FLR 24277 NSWLR 62
New South Wales
Court of Appeal
CITATION: Gorczynski v W&FT Osmo Pty Ltd [2010] NSWCA 163 HEARING DATE(S): 2 June 2010
JUDGMENT DATE:
14 July 2010JUDGMENT OF: Giles JA at 1; Tobias JA at 2; McColl JA at 137 DECISION: (a) Leave to appeal from the decision of Simpson J of 24 July 2009 granted.
(b) Appeal dismissed.
(c) The applicant to pay the second respondent’s costs of the summons for leave to appeal and of the appeal.CATCHWORDS: INSURANCE – Claims generally – Statutory charge on insurance money and leave to proceed against insurer – Plaintiff sought leave to commence proceedings against insurer to enforce charge – Primary judge dismissed application for leave – Appeal against decision of primary judge – Whether prohibition under s 6 of Law Reform (Miscellaneous Provisions) Act 1946 applies – Whether as a matter of discretion the application should be rejected – Whether claim for damages is for legal costs not causally related to alleged negligence of insured – Whether plaintiff has arguable case for establishing duty of care – Whether s 54 of Insurance Contracts Act 1984 (Cth) has no application because insured never made claim upon insurer for payment under policies – Whether plaintiff’s cause of action was commenced outside limitation period – Plaintiff’s claim against insured is statute barred – Plaintiff’s application for leave to commence action against insurer refused - PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Rules of court – Parties – Joinder of parties – Plaintiff filed notice of motion seeking to join insurer as party to proceedings instituted by him against insured – Primary judge dismissed notice of motion – Appeal dismissed LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Insurance Contracts Act 1984 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure Rules 2005CASES CITED: Bailey v New South Wales Medical Defence Union Ltd [1995] HCA 28; (1995) 184 CLR 399
C E Heath Casualty & General Insurance Ltd v Grey (1993) 32 NSWLR 25
Commonwealth Bank of Australia v Baltica General Insurance Co Ltd (1992) 28 NSWLR 579
FAI General Insurance Co Ltd v Australian Hospital Care Pty Ltd [2001] HCA 38; (2001) 204 CLR 641
Kinzett v McCourt [1999] NSWCA 7; (1999) 46 NSWLR 32
Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; (2008) 74 NSWLR 102
Ratcliffe v VS&B Border Homes Ltd (1987) 9 NSWLR 390
Triden Properties Ltd v Capita Financial Group Ltd (1996) 12 BCL 402
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107
Tzaidas by his tutor Tzaidas v Child [2004] NSWCA 252; (2004) 61 NSWLR 18
Walton v National Employers’ Mutual General Insurance Association Ltd [1973] 2 NSWLR 73
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514
Winnote Pty Ltd v Page [2006] NSWCA…
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Details
- AGLC
- Gorczynski v W&Ft Osmo Pty Ltd [2010] NSWCA 163
- Case
- [2010] NSWCA 163
- Decision Date
CaseChat Overview and Summary
Gorczynski (the plaintiff) sought leave to commence proceedings against W&Ft Osmo Pty Ltd (the insurer) to enforce a statutory charge on insurance money, following an earlier dismissal of a similar application by the primary judge. The plaintiff's claim against the insured was for damages allegedly arising from negligence, but this claim was found to be statute-barred. The appeal concerned the plaintiff's attempt to proceed directly against the insurer.
The central legal issues before the Court of Appeal were whether the prohibition under section 6 of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW) applied, whether the application for leave should be refused as a matter of discretion, and whether the plaintiff had an arguable case for establishing a duty of care against the insured. Further, the court considered whether section 54 of the *Insurance Contracts Act 1984* (Cth) was applicable, given that the insured had not made a claim upon the insurer for payment under the policies, and whether the plaintiff's cause of action against the insurer was commenced outside the limitation period.
The Court of Appeal affirmed the primary judge's decision, finding that the plaintiff's claim against the insured was statute-barred. This fundamental defect meant that the plaintiff could not establish an arguable case against the insured, which was a prerequisite for seeking leave to proceed against the insurer under the relevant legislation. The court reasoned that the statutory charge provisions were intended to provide a remedy where a valid claim existed against the insured, not to revive a claim that was already time-barred. Consequently, the court held that the plaintiff had not demonstrated an arguable case for establishing a duty of care, nor had they satisfied the conditions for proceeding against the insurer.
Leave to appeal was granted, but the appeal itself was dismissed. The applicant was ordered to pay the second respondent's costs of the summons for leave to appeal and of the appeal.
The central legal issues before the Court of Appeal were whether the prohibition under section 6 of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW) applied, whether the application for leave should be refused as a matter of discretion, and whether the plaintiff had an arguable case for establishing a duty of care against the insured. Further, the court considered whether section 54 of the *Insurance Contracts Act 1984* (Cth) was applicable, given that the insured had not made a claim upon the insurer for payment under the policies, and whether the plaintiff's cause of action against the insurer was commenced outside the limitation period.
The Court of Appeal affirmed the primary judge's decision, finding that the plaintiff's claim against the insured was statute-barred. This fundamental defect meant that the plaintiff could not establish an arguable case against the insured, which was a prerequisite for seeking leave to proceed against the insurer under the relevant legislation. The court reasoned that the statutory charge provisions were intended to provide a remedy where a valid claim existed against the insured, not to revive a claim that was already time-barred. Consequently, the court held that the plaintiff had not demonstrated an arguable case for establishing a duty of care, nor had they satisfied the conditions for proceeding against the insurer.
Leave to appeal was granted, but the appeal itself was dismissed. The applicant was ordered to pay the second respondent's costs of the summons for leave to appeal and of the appeal.
Orders
Orders of the court
(a) Leave to appeal from the decision of Simpson J of 24 July 2009 granted.
(b) Appeal dismissed.
(c) The applicant to pay the second respondent’s costs of the summons for leave to appeal and of the appeal.
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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