DISTRICT COURT OF QUEENSLAND
CITATION:
Kalimnios v Ewen [2011] QDC 264
PARTIES:
KARLA MARIE KALIMNIOS
(plaintiff/respondent)v
WILLIAM JOHN EWEN AS ADMINISTRATOR OF THE ESTATE OF JASON WILLIAM EWEN
(defendant/applicant)FILE NO:
2006/2011
PROCEEDING:
Application
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
11 November 2011
DELIVERED AT:
Brisbane
HEARING DATE:
25 October 2011
JUDGE:
Rafter SC DCJ
ORDERS:
1. The defendant’s application for summary judgment is dismissed.
2. That each party’s costs of the application be costs in the proceeding.
CATCHWORDS:
PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURT – CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – OTHER MATTERS – SUMMARY JUDGMENT – application for summary judgment under r 293 Uniform Civil Procedure Rules 1999 (Qld) – whether the plaintiff has no prospect of succeeding – where the plaintiff’s personal injuries arose from her vehicle colliding with a pedestrian – where the pedestrian died from the injuries he sustained in the collision – where the collision arose out of the deceased’s negligence – where the plaintiff seeks damages from the deceased pedestrian’s estate – where the deceased pedestrian’s estate has been completely administered and the defence of plene administravit has been pleaded by the defendant – where the plaintiff argues the deceased was covered by a contract of insurance – where the insurer has not been joined as a party – where the defendant argues that an exclusion clause in the contract of insurance applies precluding liability – whether the exclusion clause applies
SUCCESSION – EXECUTORS AND ADMINISTRATORS – ADMINISTRATION – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – whether the defence of plene administravit should succeed
INTERPRETATION – PARTICULAR WORDS AND PHRASES – INSURANCE – EXCLUSION CLAUSE – where the defendant argues that an exclusion clause in the policy of insurance applies precluding liability – where the exclusion clause states that the insurer will not be liable for damage arising from any act or omission that is dishonest, fraudulent, criminal, wilful or malicious – where the deceased threw a knife at another party shortly before running onto the road causing the collision – where the defendant argues that the throwing of the knife constitutes an assault and clearly falls within the exclusion clause – whether the exclusion clause applies on the facts
Criminal Code, ss 3, 69, 245, 260, 268, 269, 328 and 335
Transport Operations (Road Use Management – Road Rules) Regulation 1999, ss 230 and 236
Uniform Civil Procedure Rules 1999, rr 69, 192 and 293Vagrants, Gaming and Other Offences Act 1931, s 7AA
Agar v Hyde (2000) 201 CLR 552, cited
Bolton Properties P/L v JK Investments (Australia) P/L [2009] QCA 135, cited
Levy v Kum Chah (1936) 56 CLR 159, cited
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, cited
Samways v WorkCover Queensland & Ors [2010] QSC 127, citedCOUNSEL:
R S Ashton for the plaintiff
R F King-Scott for the defendant
SOLICITORS:
MurphySchmidt for the plaintiff
Bell Dixon Butler for the defendant
Introduction
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- AGLC
- Kalimnios v Ewen [2011] QDC 264
- Case
- [2011] QDC 264
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the plaintiff had any prospect of succeeding in her action against the deceased's estate, given the defence of plene administravit, and whether the exclusion clause in the insurance policy applied to the circumstances of the case. The court examined the nature of the deceased's actions and whether they fell within the exclusion clause, which precluded liability for any act or omission that was dishonest, fraudulent, criminal, wilful or malicious. The court needed to assess if the deceased's actions constituted an assault, and if so, whether this act fell within the exclusion clause.
The court found that the plaintiff had a prospect of succeeding in her action, and therefore dismissed the defendant's application for summary judgment. The court held that the deceased's actions, while they may have constituted an assault, did not necessarily fall within the exclusion clause. The court determined that the exclusion clause's application was not clear-cut and required further evidence and argument. The court ordered that each party bear their own costs of the application.
The court dismissed the defendant's application for summary judgment and ordered that each party bear their own costs of the application. The court held that the plaintiff had a prospect of succeeding in her action, and that the application of the exclusion clause in the insurance policy required further evidence and argument. The case will proceed to trial to determine the liability of the deceased's estate and the insurer's potential liability under the policy.
Orders
Orders of the court
1. The defendant’s application for summary judgment is dismissed.
2. That each party’s costs of the application be costs in the proceeding.
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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