Haddad v Allianz Australia Insurance Ltd (No 3)
[2014] NSWDC 309
•27 August 2014
District Court
New South Wales
Medium Neutral Citation: Haddad v Allianz Australia Insurance Ltd (No 3) [2014] NSWDC 309 Decision date: 27 August 2014 Jurisdiction: Civil Before: Cogswell SC DCJ Decision: The stay application is refused.
Catchwords: CIVIL LAW – procedure – stay of proceedings – interests of justice – practical effect of judgment – assessment of damages – prolonged litigation Category: Procedural and other rulings Parties: Sally Haddad (plaintiff)
Allian Australia Insurance Limited (defendant)Representation: Counsel: S Haddad (plaintiff)
D P O’Connor (defendant)
File Number(s): 2012/0009339
Judgment
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On 13 May 2014 and 21 August 2014, I delivered judgments in these proceedings. The effect of the judgments was that I found the defendant, Allianz Australia Insurance Limited, liable to the plaintiff, Sally Haddad.
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Mr O’Connor of counsel, who appears for Allianz, has applied for a stay of proceedings for 28 days. I should add that although I have determined the question of liability, I have not yet determined quantum. That is a separate issue which was ordered to be determined, apart from liability, by His Honour Judge Elkaim SC before the matter came on before me.
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The stay application is supported by an affidavit of the solicitor on the record for Allianz, Paul John Angus, and argued by Mr O’Connor. Ms Haddad of counsel, who appears for Sally Haddad, opposes the stay application. Both counsel have directed my attention to the relevant statutory provisions and commentary in the practice.
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Essentially, Mr O’Connor’s argument is that it is in the interests of justice that the stay should be granted. He says that the damages assessment part of the case could take up to seven days or more. He argues that the issues determined by me were novel and in his affidavit Mr Angus, whose evidence I accept, points out certain practical effects of my judgments on the insurance industry.
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Ms Haddad, on the other hand, argues that her client should not be kept out of the fruits of her victory and that the determination of the quantum of damages will not be a lengthy process. I read an affidavit of Jim Haddad dated 16 December 2013, which indicated that the quantum is over $700,000. The main component of that is an assessment for repair of the damage which is said to have occurred maliciously. There is attached to that affidavit of Mr Haddad a detailed estimate for that amount.
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Mr O’Connor argues that the litigation has been prolonged so far and that is likely to be the case for the assessment of damages.
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I am not inclined to grant a stay of the proceedings. My main reasons are these. First, in my opinion the assessment of the novelty of the issues raised by my judgment and the impact on the insurance industry should be made by the Court of Appeal. I myself am not convinced that the issues would be appropriately described as novel. I can see that there are determinations which I have made regarding misleading conduct after the period of an insurance contract, which may well be an important issue to agitate in the Court of Appeal. But I would regard that question as one which should be advanced before the Court of Appeal on a leave application.
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Secondly, I am concerned about Mr O’Connor’s point on the length of any damages hearing. On the other hand, it does seem to me, on the evidence of Mr Haddad, that the quantum is circumscribed. There are three main areas: the cost of repairs, the cost of renting alternative accommodation and some adjustment for rates and land tax. I accept Mr O’Connor’s observations from his professional experience about the likelihood that the issues might descend into detail, but it seems to me that these issues are best determined by me managing the case from hereon, rather than Ms Haddad having to wait further for the fruits of her victory. In a week or two, it will be four years since the damage occurred to her property. In addition, apparently a loss assessor from Allianz attended the property soon after the damage occurred and produced a loss assessor’s report. Mr O’Connor points out that the report will not be admissible in evidence as such, but it still seems to me that the effect is that Allianz will have firsthand and immediate observations about the state of the property at the relevant time.
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For those reasons, I refuse the application for a stay.
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Decision last updated: 19 March 2015
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