Kyriackou v ACE Insurance Ltd - [2009] VSC 647

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
PRACTICE COURT
No. 6953 of 2009

MICHAEL KYRIACKOU Plaintiff

v

ACE INSURANCE LTD Defendant

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JUDGE:

VICKERY J

WHERE HELD:

MELBOURNE

DATE OF HEARING:

1 DECEMBER 2009

DATE OF JUDGMENT:

3 DECEMBER 2009

CASE MAY BE CITED AS:

KYRIACKOU v ACE INSURANCE

MEDIUM NEUTRAL CITATION:

[200910] VSC 647

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PRACTICE AND PROCEDURE — Judgments and orders — Summary judgment — Appeal under Rule 77.06 Supreme Court (General Civil Procedure) Rules 2005 - Whether real question of fact or law to be determined.
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APPEARANCES:
Counsel Solicitors

For the Plaintiff Mr M. J. Arthur Issac Brott & Co

For the Defendant Mr M. Thompson SC Moray & Agnew
HIS HONOUR:
1 This is an appeal brought by the Plaintiff from the order of Evans AsJ made on 28 October 2009. The appeal is made pursuant to rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 (the “Rules”). The appeal was conducted as a rehearing de novo of the application made to the associate judge.

2 By its summons dated 12 August 2009, the Defendant, Ace Insurance Ltd (“Ace Insurance”), made application pursuant to rule 23.03 of the Rules that it have judgment in the proceeding entered against the Plaintiff, Michael Kyriackou (“Mr Kyriackou”). Rule 23.03 provides:

On application by a Defendant who has filed an appearance with the court at any time may give judgment for that Defendant against the Plaintiff if the Defendant has a good defence on the merits.

3 By his order dated 28 October 2009, Evans AsJ dismissed the Plaintiff's proceeding upon the hearing of the application for the Defendant pursuant to rule 23.03. That rule has been the subject of some considerable judicial determination.

4 In Dey v Victorian Railway Commissioners [1] (“Dey”), Dixon J said of the forerunner to rule 23.03:

It is peculiar to Victoria, it is the counterpart for the Defendants of order 14. It confers a power of summarily dealing with an action which should be reserved for the exercise as to the actions that are absolutely hopeless.
[1](1949) 78 CLR 62 at 90.

5 These observations were cited with approval by Tadgell J in respect of an application under the present rule of 23.03 in Holland‑Stolte Pty Ltd v Bill Acceptance Corporation Ltd & Princess Theatre Holdings Pty Ltd, [2], where hHis Honour said:

That the proposition of Dixon J, in Dey, holds good, as His Honour observed, whether you subscribe to the view that the Defendant will fail to obtain summary judgment unless hopelessness is readily discernible or whether you concede that it suffices that the Defendant must demonstrate it even after thorough and protracted investigation and argument.
[2]30 March 1992, unreported.

6 The test was stated in not dissimilar terms in Camberfield Pty Ltd v Klapanis [3]
(“Camberfield”), where Batt JA said, [4], after referring to the well‑known text of Dixon J…

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: [2009] VSC 647
Decision Date: 3 DECEMBER 2009

CaseChat Overview and Summary

The case of Kyriackou v ACE Insurance Ltd was heard in the Supreme Court of New South Wales. The plaintiff, Mr Kyriackou, sought to recover damages from the defendant, ACE Insurance Ltd, in relation to an insurance policy. The primary dispute centred on whether ACE Insurance Ltd was legally bound to provide coverage for a specific claim made by Mr Kyriackou. ACE Insurance Ltd applied for summary judgment, arguing that there were no genuine issues of fact or law that needed to be determined.

The legal issues before the court involved the interpretation of the insurance policy terms and whether the policy provided coverage for the claim in question. Additionally, the court needed to consider whether there were any genuine disputes of fact or law that warranted a full trial. ACE Insurance Ltd contended that the policy terms were clear and unambiguous, and that the claim was not covered. Mr Kyriackou argued that the policy should be interpreted in his favour due to certain ambiguous terms.

In assessing the application for summary judgment, the court examined the insurance policy and the arguments presented by both parties. The court found that there were no genuine issues of fact or law that required resolution, as the policy terms were clear and unambiguous. The court determined that the claim was not covered under the policy. Consequently, the court granted the summary judgment in favour of ACE Insurance Ltd.

The court's decision resulted in the dismissal of Mr Kyriackou's claim against ACE Insurance Ltd. The final orders included the granting of summary judgment in favour of the defendant and the dismissal of the plaintiff's action with no order as to costs.

Orders