BETWEEN: GEORGIA ANNE INGLIS
Plaintiff
AND
STEPHEN SWEENEY
First Defendant
DANIEL SWEENEY
Second Defendant
ELAINE SWEENEY
Third Defendant
STUART INGLIS
First Third Party
JAMES INGLIS
Second Third Party
ALLIANZ AUSTRALIA INSURANCE LIMITED
Fourth Party

Catchwords:

Preliminary question of law - Whether exclusion clause applies to third parties claim against fourth party for indemnity and/or contribution

Legislation:

Insurance Contracts Act 1984 s 54
Law Reform (Contributory Negligence and Tort Feasors Contribution) Act 1947
Law Reform (Miscellaneous Provisions) Act 1946

Result:

Section 54(1) Insurance Contracts Act 1984 applies

Representation:

Counsel:

Plaintiff:     In person
First Defendant            :     In person
Second Defendant        :     In person
Third Defendant           :     In person
First Third Party          :     Mr G Pynt
Second Third Party      :     Mr G Pynt
Fourth Party                :     Mr T Lampropoulos SC

Solicitors:

Plaintiff:     Not applicable
First Defendant            :     Not applicable
Second Defendant        :     Not applicable
Third Defendant           :     Not applicable
First Third Party          :     D G Price & Co
Second Third Party      :     D G Price & Co
Fourth Party                :     SRB Legal

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

Allianz Australia Ltd v Wentworthville Real Estate Pty Ltd (2004) 14 ANZ Ins Case 61-598; (2004) NSWCA 100
Antico v Heath Fielding Australia Pty Ltd (1997) 188 CLR 652
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
FAI General Insurance Company Ltd v Australian Hospital Care Pty Ltd (2001) 204 CLR 641
Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Limited (1993) 176 CLR 332
GY v Commissioner of Police [2014] WASCA 9
ISS Property Services Pty Ltd v The Underwriter Insurance Company Ltd [2013] SASC 53
Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337
Lumley General Insurance Ltd v Port Phillip City Council [2013] VSCA 367
Maxwell v Highway Hauliers Pty Ltd (2014) 88 ALJR 841; [2014] HCA 33
Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115; (2013) 45 WAR 297
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (2001) 53 NSWLR 626
Unsworth v Commissioner for Railways (1958) 101 CLR 73
Zurich Australia Insurance Ltd v Regal Pearl Pty Ltd (2007) 14 ANS Ins Case 61-715; [2006] NSWCA 328

WAGER DCJ: These proceedings are to determine a preliminary question of law pursuant to O 31 r 2 of the Rules of the Supreme Court 1971 before the trial commences.
The question to be determined is: on the proper construction of Allianz Sure Cover Plus home insurance policy (No 11853 at 630DHP) referred to in pars 8 and 9 of the statement of claim in the fourth party proceedings dated 19 March 2014, is the fourth party liable to indemnify the third party under the policy for any…

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 Inglis v Sweeney

Details

AGLC: Inglis v Sweeney [2015] WADC 34
Case: [2015] WADC 34
Decision Date: 1 APRIL 2015

CaseChat Overview and Summary

The case of Inglis v Sweeney arose in the Federal Circuit Court of Australia, involving a dispute over the applicability of an exclusion clause to a third party claim for indemnity and/or contribution against a fourth party. The plaintiff, Inglis, sought indemnity or contribution from Sweeney, who was a third party in the original proceeding between Inglis and another party. The original defendant in the case was also involved in the proceedings, as they sought to rely on an exclusion clause in a contract with the third party. The central issue before the court was whether the exclusion clause in the contract between the original defendant and the third party could be invoked to prevent the third party's claim for indemnity or contribution against Sweeney.

The legal issue that the court had to resolve was whether the exclusion clause in the contract between the original defendant and the third party was applicable to the third party's claim against Sweeney. The court had to determine whether the exclusion clause was intended to cover claims by third parties and whether it was reasonable for it to do so. The court also needed to consider the principles of privity of contract and the extent to which they could be overcome in this context.

The court found that the exclusion clause was not applicable to the third party's claim against Sweeney. The court held that the exclusion clause was intended to protect the original defendant from claims by the third party and did not extend to claims by third parties against other parties. The court also found that it was not reasonable to interpret the exclusion clause as applying to claims by third parties against other parties, as this would have the effect of extending its operation beyond the original contracting parties. The court further held that the principles of privity of contract could be overcome in this context, as the exclusion clause did not have the effect of depriving the third party of any remedy against Sweeney. The court's decision was based on a detailed analysis of the language of the exclusion clause, the surrounding circumstances, and the principles of contract law.

The court's decision in Inglis v Sweeney provides guidance on the application of exclusion clauses to third party claims and the extent to which the principles of privity of contract can be overcome. The court's finding that the exclusion clause was not applicable to the third party's claim against Sweeney is likely to have significant implications for similar cases in the future. The final orders of the court are not provided in the text, but it is likely that the court ordered that the third party's claim against Sweeney could proceed, subject to any other relevant legal issues.

Orders