Lees v Hallew Pty Limited - [2015] NSWDC 357

District Court

New South Wales

Medium Neutral Citation: Lees v Hallew Pty Limited [2015] NSWDC 357
Hearing dates: 13-14 August 2015
Date of orders: 14 August 2015
Decision date: 14 August 2015
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Leave to the plaintiff to join CIC Allianz Insurance Ltd as second defendant

Plaintiff to file and serve amended statement of claim properly pleading the plaintiff’s case against the second defendant and making any consequential amendments against first defendant within 28 days

Leave to first defendant to file and serve amended defence, if that be necessary, within 28 days of service of amended statement of claim

Second defendant to file defence within 28 days of service of amended statement of claim

Cross-claim of first defendant to be filed at time for filing amended defence

Cross-claim of second defendant to be filed at time of filing defence

Costs of this application be costs in the cause

Directions hearing on 27 August 2015 vacated.
Stood over to case management directions hearing on 15 October 2015
Catchwords: CIVIL PROCEDURE – Application for leave to join defendant – Motor Accidents Compensation Act 1999 claim – Whether plaintiff’s likely damages meet statutory threshold - Whether apportionment of liability between the first and second defendants to be taken into account
Legislation Cited: Motor Accidents Compensation Act 1999
Passenger Transport Act 1990
Transport Administration Act 1988
Cases Cited: Reeves v Reeves [2002] NSWCA 181
Category: Procedural and other rulings
Parties: Pamela Lees (Plaintiff)
Hallew Pty Limited (Defendant)
CIC Allianz Insurance Ltd (Proposed 2nd defendant)
Representation:
Counsel:
Mr P Reggateri (Plaintiff)
Mr D Hanna (Proposed 2nd defendant)
Solicitors:
Marsdens Law Group (Plaintiff)
Wotton Kearney (Defendant)
Hall & Wilcox Lawyers (Proposed 2nd defendant)

File Number(s): 2014/99044
Publication restriction: No

Judgment

HIS HONOUR: There is currently before me an amended motion on notice. Notice of the original motion was filed on 9 April 2015. It was first returnable on 24 April 2015. On that day, leave was granted to the plaintiff to file an amended notice of motion, and that occurred on 8 May 2015. It is that application which is currently before me. The respondent to the application is CIC Allianz Insurance Limited which filed a notice of appearance on 3 August 2015. The respondent is CIC Allianz Insurance Limited because there is no dispute that it was the insurer of the registered company, which had it not been deregistered, would have been the respondent. At all material times the respondent had given a contract of insurance to G & S Mini Bus Pty Limited indemnifying that company against its liability to pay any damages under a third party policy issued pursuant to the Motor Accidents Compensation Act 1999 in respect of a motor vehicle registered number TV 35 74.
G & S Mini Bus Pty Limited was deregistered on 31 October 2012 and at the time of its deregistration had no assets. The plaintiff's claim is currently against Hallew Pty Limited trading as G & S Diesel Service. In fact,…

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: [2015] NSWDC 357
Decision Date: 14 August 2015

CaseChat Overview and Summary

Lees, the plaintiff, applied for leave to join CIC Allianz Insurance Ltd as the second defendant in an existing proceeding against Hallew Pty Limited, the first defendant, in relation to a motor accident compensation claim. The case was heard in the District Court of Queensland. The plaintiff sought to join the second defendant, an insurer, to the existing proceeding because the first defendant was insured under a policy with the second defendant. The plaintiff argued that the potential damages exceeded the statutory threshold for self-insurance, justifying the addition of the insurer to the proceeding.

The court had to determine whether the plaintiff’s likely damages met the statutory threshold for joining an insurer as a party to the proceeding and whether the apportionment of liability between the first and second defendants should be considered in this decision. The court considered the statutory provisions under the Motor Accidents Compensation Act 1999 and relevant case law to assess the merits of the plaintiff’s application.

The court found that the plaintiff’s likely damages exceeded the statutory threshold and granted leave for the plaintiff to join CIC Allianz Insurance Ltd as the second defendant. The court reasoned that the statutory threshold was intended to ensure that the insurance policy could be utilised effectively for damages claims exceeding a certain amount. Additionally, the court held that the apportionment of liability between the first and second defendants was a matter to be determined in the substantive proceeding, not in the application for leave to join. The court ordered the plaintiff to file and serve an amended statement of claim within 28 days, and set out timelines for the first and second defendants to file their respective defences and any necessary cross-claims.

The court ordered that the costs of the application be costs in the cause and vacated the previously scheduled directions hearing, instead setting a new case management directions hearing on 15 October 2015. The court’s decision allowed the plaintiff to proceed with the inclusion of the insurer in the proceeding, facilitating a more comprehensive resolution of the compensation claim.

Orders

Orders of the court

Leave to the plaintiff to join CIC Allianz Insurance Ltd as second defendant

Plaintiff to file and serve amended statement of claim properly pleading the plaintiff’s case against the second defendant and making any consequential amendments against first defendant within 28 days

Leave to first defendant to file and serve amended defence, if that be necessary, within 28 days of service of amended statement of claim

Second defendant to file defence within 28 days of service of amended statement of claim

Cross-claim of first defendant to be filed at time for filing amended defence

Cross-claim of second defendant to be filed at time of filing defence

Costs of this application be costs in the cause

Directions hearing on 27 August 2015 vacated.

Stood over to case management directions hearing on 15 October 2015

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.

Medium Neutral Citation:	Lees v Hallew Pty Limited [2015] NSWDC 357
Hearing dates:	13-14 August 2015
Date of orders:	14 August 2015
Decision date:	14 August 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Leave to the plaintiff to join CIC Allianz Insurance Ltd as second defendant Plaintiff to file and serve amended statement of claim properly pleading the plaintiff’s case against the second defendant and making any consequential amendments against first defendant within 28 days Leave to first defendant to file and serve amended defence, if that be necessary, within 28 days of service of amended statement of claim Second defendant to file defence within 28 days of service of amended statement of claim Cross-claim of first defendant to be filed at time for filing amended defence Cross-claim of second defendant to be filed at time of filing defence Costs of this application be costs in the cause Directions hearing on 27 August 2015 vacated. Stood over to case management directions hearing on 15 October 2015
Catchwords:	CIVIL PROCEDURE – Application for leave to join defendant – Motor Accidents Compensation Act 1999 claim – Whether plaintiff’s likely damages meet statutory threshold - Whether apportionment of liability between the first and second defendants to be taken into account
Legislation Cited:	Motor Accidents Compensation Act 1999 Passenger Transport Act 1990 Transport Administration Act 1988
Cases Cited:	Reeves v Reeves [2002] NSWCA 181
Category:	Procedural and other rulings
Parties:	Pamela Lees (Plaintiff) Hallew Pty Limited (Defendant) CIC Allianz Insurance Ltd (Proposed 2nd defendant)
Representation:	Counsel: Mr P Reggateri (Plaintiff) Mr D Hanna (Proposed 2nd defendant) Solicitors: Marsdens Law Group (Plaintiff) Wotton Kearney (Defendant) Hall & Wilcox Lawyers (Proposed 2nd defendant)
File Number(s):	2014/99044
Publication restriction:	No