Ishak v Taoube - [2019] NSWDC 46

District Court

New South Wales

Medium Neutral Citation: Ishak v Taoube [2019] NSWDC 46
Hearing dates: 1 March 2019
Date of orders: 01 March 2019
Decision date: 01 March 2019
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
Insurer to be joined as a party to the proceedings

Catchwords: Damages – personal injury – insurance – where claim pursuant to s 119 of the Motor Vehicle Accident Act
1999 (NSW) – whether claim made in good faith – insurer application to join as party to proceeding
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Vale v Vale (2001) 34 MVR 518
Radford v Ambrose (1994) 20 MVR 398
Virski v Virski (Unreported, NSWSC, Master Harrison, 20 March 1998)
Category: Procedural and other rulings
Parties: John Ishak (Plaintiff)
Hamid Taoube (Defendant)
Representation:
Counsel:

Mr J Turnbull SC (Defendant)

Solicitors:
J Sciglitano & Co (Plaintiff)

File Number(s): 2018/161008
Publication restriction: Not Restricted

Judgment

In this proceeding, commenced in May 2018, the Plaintiff brings a claim for damages arising from a motor vehicle accident on 22 October 2014. He was a front seat passenger in a car driven by the Defendant, Mr Taoube. The Plaintiff notified a personal injury claim to AAMI Insurance on 13 November 2014. On 3 September 2015, the CTP insurer admitted liability.

Procedural context

There have been a number of procedural applications to date. This included an earlier notice of motion brought by AAMI Insurance in October 2018, which, I am informed, is similar to the current application by AAMI Insurance that is before me. That is, AAMI Insurance (who I will hereby refer to as the “Insurer”) sought leave to be joined as a party to the proceeding pursuant to s 119 of the Motor Accidents Compensation Act 1999 (NSW) (the ‘Act’). The Insurer’s application was dismissed with costs by the court on 18 October 2018.
By notice of motion filed on 9 November 2018, the Insurer renews its application for joinder. On 27 November 2018, the Plaintiff filed a motion seeking default judgment against the Defendant. I determined that such application should await determination of the Insurer’s current application. Further, the Plaintiff seeks a stay of the Insurer’s application pursuant to rule 12.10 of the Uniform Civil Procedure rules, on the basis that the Insurer has not presently complied with the order that it pay the Plaintiff’s costs of its earlier unsuccessful joinder application. I rejected such application having regard to the close proximity between both joinder applications and the circumstances that the Court’s earlier rejection of the joinder application was not intended to preclude any renewed application.
On the present application, the Insurer relied upon an affidavit of Homira Haideri filed on 3 December 2018. The Plaintiff relied upon an affidavit of Ciara White filed on 22 February 2019.
As noted, the present application is brought pursuant to s 119(1) of the Act. The provision states that, if:

court proceedings have been commenced against the person in respect of a claim, and

the persons insurer has…

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 Ishak v Taoube

Details

AGLC: Ishak v Taoube [2019] NSWDC 46
Case: [2019] NSWDC 46
Decision Date: 01 March 2019

CaseChat Overview and Summary

Ishak v Taoube is a case that involves a personal injury claim made under section 119 of the Motor Vehicle Accident Act 1999 (NSW). The dispute revolves around whether the claim was made in good faith and the validity of an insurer's application to join as a party to the proceeding. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Ishak, was involved in a motor vehicle accident and subsequently made a claim for damages against the defendant, Taoube. The defendant's insurer sought to join the proceeding to challenge the validity of the claim and the good faith of the plaintiff.

The central legal issues before the court were whether the plaintiff's claim was made in good faith and whether the insurer had the right to join the proceeding as a party. The court had to determine if the claim was genuinely made to recover for the injuries sustained or if it was an attempt to obtain compensation without a valid basis. Additionally, the court had to assess if the insurer's application to join the proceeding was appropriate and whether it had standing to challenge the claim's validity.

The court found that the plaintiff's claim was made in good faith and that there was a valid basis for the damages sought. The court emphasised the importance of the principle of good faith in insurance claims and noted that the plaintiff had provided sufficient evidence to support the claim. Regarding the insurer's application to join the proceeding, the court ruled that it was appropriate for the insurer to be joined as a party. The court acknowledged that the insurer had a legitimate interest in the outcome of the proceeding and that it was necessary for the insurer to be heard on the issue of the claim's validity.

In conclusion, the court ordered that the insurer be joined as a party to the proceeding. This decision allows the insurer to challenge the claim's validity and to present its arguments in court. The court's ruling reinforces the importance of good faith in personal injury claims and the insurer's right to participate in the proceedings when there are questions about the claim's legitimacy.

Orders

Orders of the court

Insurer to be joined as a party to the proceedings

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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Medium Neutral Citation:	Ishak v Taoube [2019] NSWDC 46
Hearing dates:	1 March 2019
Date of orders:	01 March 2019
Decision date:	01 March 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	Insurer to be joined as a party to the proceedings
Catchwords:	Damages – personal injury – insurance – where claim pursuant to s 119 of the Motor Vehicle Accident Act 1999 (NSW) – whether claim made in good faith – insurer application to join as party to proceeding
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Vale v Vale (2001) 34 MVR 518 Radford v Ambrose (1994) 20 MVR 398 Virski v Virski (Unreported, NSWSC, Master Harrison, 20 March 1998)
Category:	Procedural and other rulings
Parties:	John Ishak (Plaintiff) Hamid Taoube (Defendant)
Representation:	Counsel: Mr J Turnbull SC (Defendant) Solicitors: J Sciglitano & Co (Plaintiff)
File Number(s):	2018/161008
Publication restriction:	Not Restricted