Lee v Arisaig Pty Ltd - [2005] QSC 265

SUPREME COURT OF QUEENSLAND

CITATION:

Lee v Arisaig Pty Ltd & Ors [2005] QSC 265

PARTIES:

JAMES MICHAEL LEE
(plaintiff)
v
ARISAIG PTY LTD (ACN 010 234 009)
(first defendant)
WOODLANDS ENTERPRISES PTY LTD
(ACN 009 759 746)
(second defendant)
LUMLEY GENERAL INSURANCE LIMITED
(ACN 009 759 746)
(third party)

FILE NO:

11029 of 2001

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

23 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2005

JUDGE:

Mackenzie J

ORDER:

1. Application dismissed with costs to be assessed

CATCHWORDS:

INSURANCE – POLICIES OF INSURANCE – CONSTRUCTION – where first defendant is electrical contractor engaged by second defendant – where plaintiff had accident whilst carrying out electrical work on second defendant’s premises – where plaintiff sued first defendant and second defendant for personal injuries sustained as result of accident – where third party proceedings commenced against first defendant’s insurance provider – where application made by third party pursuant to r483 UCPR for preliminary and summary determination of question arising from third party proceedings – where question to be determined related to whether second defendant entitled to indemnity as “principal” under policy between first defendant and third party – whether question can be appropriately heard before trial and summarily

Uniform Civil Procedure Rules 1999 (Qld) r 483

Australian Paper Plantations Pty Ltd v J & EM Venturoni [2000] VSCA 71
Burch v Shire of Yarra Ranges (2004) 42 MVR 1
Kavanagh v The Commonwealth (1960) 103 CLR 547
QBE Insurance (Aust)) Pty Ltd v SLE Worldwide Australia Pty Ltd [2005] NSWSC 776
Roads and Traffic Authority (NSW) v Palmer (2003) 38 MVR 82
Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd (2000) 23 WAR 291

COUNSEL:

K Holyoak for the applicant
G W Diehm for the second defendant

SOLICITORS:

Barry & Nilsson for the applicant
McInnes Wilson for the first defendant
Butler McDermott & Egan for the second defendant

MACKENZIE J:This is an application by the third party, an insurer, pursuant to rule 483 UCPR for preliminary and summary determination of a question whether on the facts alleged against the third party, the second defendant is entitled to indemnity as “principal” under a policy between the first defendant and the third party. The particular focus is on the following provisions of the policy:

The agreement

“After You have paid the premium We will indemnify You against claims for Compensation in respect of Injury or Damage happening during the Period of Insurance and caused by an Occurrence in connection with Your Business”.

Definitions
“You” .. means
(a) The insured stated in the Schedule …
(d) any principal in respect of the liability of such principal arising out of the performance by You of any contract or agreement (subject to the limitations elsewhere expressed in the Policy)”.

There are two proceedings, 11029/2001 which in its present form has as its parties the plaintiff, the two defendants and the third party and BS1069 of 2005, the parties to which are the…

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 Lee v Arisaig Pty Ltd

Details

AGLC: Lee v Arisaig Pty Ltd [2005] QSC 265
Case: [2005] QSC 265
Decision Date: 23 September 2005

CaseChat Overview and Summary

The case of Lee v Arisaig Pty Ltd was heard in the Supreme Court of New South Wales. The plaintiff, Lee, was an electrician who was injured while working on a construction site owned by the second defendant, Arisaig Pty Ltd. The first defendant, an electrical contractor, was engaged by the second defendant to carry out electrical work at the site. Lee sued both defendants for the personal injuries he sustained in the accident. The third party, the first defendant’s insurer, commenced proceedings against the insurer seeking a preliminary and summary determination of the question of whether the second defendant is entitled to indemnity as a “principal” under the policy between the first defendant and the insurer. The court was required to decide whether the question could be heard before the trial and summarily.

The court examined whether the question of whether the second defendant was entitled to indemnity as a principal under the policy was appropriate to be heard before the trial and summarily. The court noted that the issue was not a simple one and required consideration of the terms of the policy and the circumstances of the accident. The court concluded that the question was not appropriate to be heard summarily as it involved complex factual and legal issues that needed to be determined at the trial. The court held that the application should be dismissed with costs to be assessed.

The court dismissed the application made by the third party pursuant to rule 483 UCPR for a preliminary and summary determination of the question arising from the third party proceedings. The court held that the question was not appropriate to be heard before the trial and summarily as it involved complex factual and legal issues that needed to be determined at the trial. The court ordered that the costs of the application be assessed.

The final orders of the court were that the application was dismissed with costs to be assessed. The court held that the question of whether the second defendant was entitled to indemnity as a principal under the policy could not be heard before the trial and summarily. The court also noted that the issue was not a simple one and required consideration of the terms of the policy and the circumstances of the accident. The court held that the application was inappropriate and dismissed it with costs to be assessed.

Orders

Orders of the court

1. Application dismissed with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lee v Arisaig Pty Ltd & Ors [2005] QSC 265
PARTIES:	JAMES MICHAEL LEE (plaintiff) v ARISAIG PTY LTD (ACN 010 234 009) (first defendant) WOODLANDS ENTERPRISES PTY LTD (ACN 009 759 746) (second defendant) LUMLEY GENERAL INSURANCE LIMITED (ACN 009 759 746) (third party)
FILE NO:	11029 of 2001
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	23 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	9 September 2005
JUDGE:	Mackenzie J
ORDER:	1. Application dismissed with costs to be assessed
CATCHWORDS:	INSURANCE – POLICIES OF INSURANCE – CONSTRUCTION – where first defendant is electrical contractor engaged by second defendant – where plaintiff had accident whilst carrying out electrical work on second defendant’s premises – where plaintiff sued first defendant and second defendant for personal injuries sustained as result of accident – where third party proceedings commenced against first defendant’s insurance provider – where application made by third party pursuant to r483 UCPR for preliminary and summary determination of question arising from third party proceedings – where question to be determined related to whether second defendant entitled to indemnity as “principal” under policy between first defendant and third party – whether question can be appropriately heard before trial and summarily Uniform Civil Procedure Rules 1999 (Qld) r 483 Australian Paper Plantations Pty Ltd v J & EM Venturoni [2000] VSCA 71 Burch v Shire of Yarra Ranges (2004) 42 MVR 1 Kavanagh v The Commonwealth (1960) 103 CLR 547 QBE Insurance (Aust)) Pty Ltd v SLE Worldwide Australia Pty Ltd [2005] NSWSC 776 Roads and Traffic Authority (NSW) v Palmer (2003) 38 MVR 82 Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd (2000) 23 WAR 291
COUNSEL:	K Holyoak for the applicant G W Diehm for the second defendant
SOLICITORS:	Barry & Nilsson for the applicant McInnes Wilson for the first defendant Butler McDermott & Egan for the second defendant