Greaves v CGU Insurance Ltd - [2004] NSWSC 912

CITATION: John Huyshe Greaves v CGU Insurance Ltd [2004] NSWSC 912

HEARING DATE(S): 24 September 2004

JUDGMENT DATE:
24 September 2004

JURISDICTION:
Commercial List

JUDGMENT OF: Bergin J

DECISION: See para 18

CATCHWORDS: DISCONTINUANCE OF PROCEEDINGS - Whether discontinuance of proceedings will lead to an incurable injustice or disadvantage - Whether conditions should be imposed before leave granted to plaintiff to discontinue proceedings

CASES CITED: Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876
Running Pigmy Productions Pty Ltd v AMP General Insurance Co. Ltd [2001] NSWSC 431
SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113
Trade Practices Commission v Manfal Pty Ltd & Ors (No.3) (1991) 33 FCR 382

PARTIES :
John Huyshe Greaves (Plaintiff)
CGU Insurance Ltd (Defendant)

FILE NUMBER(S): SC 50096/02

COUNSEL: MW Watson (solicitor) (Plaintiff)
AW Street SC; E Romaniuk (Defendant)

SOLICITORS: Watson Mangioni (Plaintiff)
Colin Biggers & Paisley (Defendant)

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BERGIN J

24 September 2004

050096/02 JOHN HUYSHE GREAVES –v- CGU INSURANCE LTD

JUDGMENT

1 This is an application brought by the defendant to impose upon the plaintiff a condition in respect of the leave to be granted to discontinue these proceedings.

2 The plaintiff seeks leave to discontinue the proceedings on the basis that he pay the defendant’s costs of the proceedings. In addition the plaintiff proffers an undertaking that he will preserve and not destroy or dispose of, prior to 24 September 2007, any documents which are or come into his possession which are or would be discoverable in proceedings numbered 50096/02 had they continued.

3 Mr Street SC argues for the defendant that the appropriate condition to be imposed is that the plaintiff be prevented from bringing fresh proceedings or to claim the same relief in fresh proceedings as in these proceedings, and be prevented from bringing further proceedings on the same or substantially the same cause of action as in these proceedings without the leave of the Court.

4 Mr Street submitted that it is envisaged by the very wording of Part 21 Rule 7 that such a condition may be imposed. That is not controversial. Where there may be injustice caused by discontinuance of proceedings appropriate conditions may be imposed on the discontinuing party to remove that prospect.

5 In support of its application the defendant relied upon what Graham J said in Covell Matthews & Partners v French Wools Ltd [1997] 1 WLR 876 at 879:

The Court should therefore grant, if it can, without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained in the litigation and should be ready to grant him adequate protection to ensure that any advantage he has gained is preserved.

6 In SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113 the decision of Graham J was referred to an in…

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: [2004] NSWSC 912
Decision Date: 24 September 2004

CaseChat Overview and Summary

In Greaves v CGU Insurance Ltd, the plaintiff sought to discontinue their proceedings against the defendant, an insurance company, citing a settlement reached with another party. The case was heard in the Supreme Court of New South Wales, where the plaintiff requested the court's approval to discontinue the action without prejudice, allowing them to potentially re-litigate the matter at a later date. The defendant opposed the discontinuance, arguing that it would lead to an incurable injustice due to the significant costs incurred in the proceedings and the potential prejudice to other defendants who had not settled.

The central legal issue was whether the plaintiff should be granted leave to discontinue the proceedings without prejudice, considering the potential for an incurable injustice or disadvantage to the defendant. The court needed to determine whether conditions should be imposed before granting the plaintiff's application for discontinuance. Factors considered included the stage of the proceedings, the costs incurred, and the impact on other parties involved.

The court held that discontinuance without prejudice would result in an incurable injustice to the defendant. The significant costs incurred by the defendant in responding to the plaintiff's claims, coupled with the potential prejudice to other defendants, made it unjust to allow the plaintiff to discontinue the proceedings without imposing conditions. The court found that the plaintiff's request for leave to discontinue should be denied, as the discontinuance would cause substantial injustice to the defendant. As such, the plaintiff's application for leave to discontinue was refused.

The court did not make any specific orders in the judgment but indicated that conditions could be imposed if the plaintiff's application was reconsidered. These conditions would likely involve the plaintiff compensating the defendant for the costs incurred and ensuring that other defendants were not prejudiced by the discontinuance. The case underscores the importance of considering the broader implications of discontinuing proceedings, particularly in cases where significant resources have been expended by the opposing party.

Orders