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Gorczynski v W & FT Osmo Pty Ltd

Gorczynski v W & FT Osmo Pty Ltd

Case [2009] NSWSC 693 24 July 2009

Jurisdiction

Statutory Interpretation

Breach of Contract

Limitation Periods

Civil Litigation & Procedure

Insurance Law

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CITATION: Gorczynski v W & F T Osmo Pty Ltd [2009] NSWSC 693

HEARING DATE(S): 30 April 2009

JUDGMENT DATE :
24 July 2009

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: Notice of motion dismissed.

CATCHWORDS: PROCEDURE – Supreme Court procedure – New South Wales – application to join insurance company as a party to proceedings – INTERPRETATION – interpretation and application of s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 and s 54(1) Insurance Contracts Act 1984 (Cth) – INSURANCE – professional indemnity insurance – insured failed, during any period of cover, to notify insurance company of any fact or circumstance that might give rise to a claim against it – claim not within policy – no application of s 54(1) Insurance Contracts Act 1984 – motion dismissed

LEGISLATION CITED: Insurance Contracts Act 1984 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Bailey v NSW Medical Defence Union Ltd [1995] HCA 28; (1995) 184 CLR 399
FAI General Insurance Co Ltd v Australian Hospital Care Pty Ltd [2001] HCA 38; (2001) 204 CLR 641
FAI General Insurance Ltd v Jarvis [1999] NSWCA 23; (1999) 46 NSWLR 1
Gorczynski v Perera & Dee [2003] NSWLEC 6
Gorczynski v Perera & Dee [2003] NSWLEC 8
State Bank of NSW Ltd v N A MacDonald (NSWSC, Cole J, 17 January 1992, unreported)
Tzaidas by his tutor Tzaidas v Child [2004] NSWCA 252; (2004) 61 NSWLR 18
Yorkville Nominees Pty Ltd (In liquidation) v Lissenden [1986] HCA 6; (1986) 160 CLR 475

TEXTS CITED: “Choosing your life raft: A review of Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6, and its analogues” (2007) 81 ALJ 180
New South Wales Legislative Assembly, Parliamentary Debates, 20 March 1946, Vol 180

PARTIES: Peter Francis Gorczynski (Plaintiff)
W & F T Osmo Pty Ltd (Defendant)

FILE NUMBER(S): SC 20520 of 2008

COUNSEL: M E Luitingh (Plaintiff)
K Turner (Defendant)
J Duncan (QBE)

SOLICITORS: Niall Connolly Lawyers (Plaintiff)
Verekers (Defendant)
Deacons (QBE)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Simpson J

24 July 2009

20520/2008 Peter Francis Gorczynski v W & F T Osmo Pty Ltd
JUDGMENT

1 HER HONOUR: By notice of motion filed on 16 December 2008, Peter Francis Gorczynski, to whom I will refer as “the plaintiff”, seeks, pursuant to UCPR 6.24, an order joining, as a party to the substantive proceedings, the QBE Insurance Group Ltd (“QBE”).

6.24(1) provides:

“(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.”

3 The plaintiff seeks to have QBE joined in order to avail himself of the right conferred by s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (“the LR(MP) Act”).

4…

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.

Continue reading Gorczynski v W & FT Osmo Pty Ltd

Details

AGLC: Gorczynski v W & FT Osmo Pty Ltd [2009] NSWSC 693
Case: [2009] NSWSC 693
Decision Date: 24 July 2009

CaseChat Overview and Summary

The applicant, Gorczynski, sought to join an insurance company as a party to proceedings in the Supreme Court of New South Wales. The dispute arose from Gorczynski's claim for damages against W & FT Osmo Pty Ltd, alleging professional negligence in relation to legal services provided. Gorczynski contended that the insurance company should be joined as it held a professional indemnity policy for W & FT Osmo Pty Ltd. The insurance company opposed the application on the basis that Gorczynski had failed to notify it of any circumstances that might give rise to a claim, as required by the policy conditions. The court was required to determine whether it had jurisdiction to join the insurance company and whether the insurer was liable to indemnify W & FT Osmo Pty Ltd for Gorczynski's claim.

The court considered the relevant statutory provisions, including section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 and section 54(1) of the Insurance Contracts Act 1984. It found that section 6(4) allowed the court to join an insurance company as a party to proceedings if the insurer held a policy that potentially covered the defendant's liability. However, the court also noted that section 54(1) of the Insurance Contracts Act 1984 provided that the insurer was not liable to indemnify the insured if the insured had failed to comply with a condition of the policy, such as the notification requirement. The court concluded that since Gorczynski had not notified the insurance company of any facts or circumstances that might give rise to a claim, the insurer was not liable to indemnify W & FT Osmo Pty Ltd.

The Supreme Court dismissed the application to join the insurance company as a party. The court held that it did not have jurisdiction to join the insurer in these circumstances, as the insurer was not liable to indemnify the defendant under the policy. The court emphasised the importance of policyholders complying with the terms of their insurance policies, particularly notification requirements. The court's decision underscored the principle that insurance companies are not obligated to indemnify insureds who fail to meet their contractual obligations under the policy.

Orders