Mesiti v CPT Custodian Limited - [2013] NSWDC 122

District Court

New South Wales

Medium Neutral Citation: Mesiti v CPT Custodian Limited [2013] NSWDC 122
Hearing dates: 27 March 2013
Decision date: 28 March 2013
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
1. Leave to the first defendant to file a third cross-claim against Calliden Insurance Limited pleading the matters raised in the application, subject to orders 2 and 3.
2. The first defendant not file the third cross-claim until two weeks have elapsed after service of the proposed third cross-claim by the first defendant upon Calliden Insurance Limited.
3. If Calliden Insurance Limited makes an application to revoke the leave granted in order 1, by reason of the contents of the proposed third cross-claim, no such third cross-claim be filed until the application by Calliden Insurance Limited is determined.
4. No order as to the costs of the amended notice of motion filed 13 March 2013.
5. Note that the first defendant by its solicitor has given an undertaking to present the lease for stamping.
6. Direct that any proposed cross-claim by the first defendant against Calliden Insurance Limited should be served on Calliden Insurance Limited and the parties by 5pm on 5 May 2013.
7. Stand over for directions on 22 April 2013 at 9.30am before the Judicial Registrar.

Catchwords: PROCEDURE - joinder - insurer - need for pleadings - statutory charge - reasonable concern of ability of insured to meet judgment - obligation on insured to take reasonable care - construction - named insured - interested party - contractual obligation to indemnify - contractual obligation to obtain insurance
Legislation Cited: Civil Procedure Act 2005, s 56
Duties Act 1997, s 304
Insurance Contracts Act 1984 (Cth), s48, s 54
Law Reform (Miscellaneous Provisions) Act 1946, s 6
Uniform Civil Procedure Rules 2005, r 6.19, r 6.24
Cases Cited: Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399
Campbell v Mutual Life and Citizens Fire and General Insurance Company (New Zealand) Limited [1971] NZLR 240
Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390
Schipp v Cameron (Supreme Court of New South Wales, Young J, 4 May 1995, unreported)
Tzaidas v Child (2004) 61 NSWLR 18
Vero Insurance Ltd v Power Technologies Pty Ltd [2007] NSWCA 226
Category: Interlocutory applications
Parties: Julie Ann Mesiti (plaintiff)
CPT Custodian Limited (first defendant/applicant on notice of motion)
Glad Cleaning Service Pty Limited (second defendant)
Jun Ku (third defendant)
Sushi Nara Australia Pty Limited (fourth defendant)
Top Green Management Pty Limited (fifth defendant)
Calliden Insurance Limited (respondent on notice of motion)
Representation: Mr S Walsh (first defendant/applicant on notice of motion)
Ms Bassi (second defendant)
Mr J Duncan (respondent on notice of motion)
Thompson Cooper Lawyers Pty Ltd (first defendant/applicant on notice of motion)
McCabes (second defendant)
Hunt & Hunt (third defendant), (fourth defendant) and (respondent on notice of motion)

File Number(s): 2011/179950
Publication restriction: No

EX TEMPORE Judgment

Julie Mesiti slipped and fell in a shopping centre and commenced proceedings against five…

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: [2013] NSWDC 122
Decision Date: 28 March 2013

CaseChat Overview and Summary

The case of Mesiti v CPT Custodian Limited involved a dispute where the primary plaintiff sought to enforce a statutory charge over property held by the defendant. The plaintiff, Mesiti, had initially obtained a judgment against the defendant, CPT Custodian Limited, and sought to enforce this judgment through a statutory charge. The first defendant, CPT Custodian Limited, sought to file a third cross-claim against Calliden Insurance Limited, the insurer of the plaintiff. The court was tasked with deciding whether the first defendant had the requisite leave to file this third cross-claim and if there were any grounds to delay the filing of such a cross-claim.

The legal issues at hand involved the procedural requirements for joinder in legal proceedings, specifically the conditions under which a party may file a cross-claim against a non-party, such as an insurer. The court needed to consider whether the first defendant had a reasonable concern about the ability of the plaintiff to meet a potential judgment against them. Additionally, the court needed to examine the obligations of the parties under their contracts, particularly the obligations of the insured to take reasonable care and the insurer's obligation to indemnify and to obtain insurance.

The court found that the first defendant had a legitimate concern regarding the plaintiff's ability to meet any potential judgment against them, given the circumstances of the case. The court granted the first defendant leave to file a third cross-claim against the insurer, Calliden Insurance Limited, subject to certain conditions. These included a two-week delay before filing the cross-claim to allow the insurer to respond, and a requirement that the cross-claim be served on all parties by a specific deadline. The court also noted that the first defendant had undertaken to present the lease for stamping and scheduled a directions hearing to manage the proceedings.

Orders

Orders of the court

1. Leave to the first defendant to file a third cross-claim against Calliden Insurance Limited pleading the matters raised in the application, subject to orders 2 and 3.

2. The first defendant not file the third cross-claim until two weeks have elapsed after service of the proposed third cross-claim by the first defendant upon Calliden Insurance Limited.

3. If Calliden Insurance Limited makes an application to revoke the leave granted in order 1, by reason of the contents of the proposed third cross-claim, no such third cross-claim be filed until the application by Calliden Insurance Limited is determined.

4. No order as to the costs of the amended notice of motion filed 13 March 2013.

5. Note that the first defendant by its solicitor has given an undertaking to present the lease for stamping.

6. Direct that any proposed cross-claim by the first defendant against Calliden Insurance Limited should be served on Calliden Insurance Limited and the parties by 5pm on 5 May 2013.

7. Stand over for directions on 22 April 2013 at 9.30am before the Judicial Registrar.

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:	Mesiti v CPT Custodian Limited [2013] NSWDC 122
Hearing dates:	27 March 2013
Decision date:	28 March 2013
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	1. Leave to the first defendant to file a third cross-claim against Calliden Insurance Limited pleading the matters raised in the application, subject to orders 2 and 3. 2. The first defendant not file the third cross-claim until two weeks have elapsed after service of the proposed third cross-claim by the first defendant upon Calliden Insurance Limited. 3. If Calliden Insurance Limited makes an application to revoke the leave granted in order 1, by reason of the contents of the proposed third cross-claim, no such third cross-claim be filed until the application by Calliden Insurance Limited is determined. 4. No order as to the costs of the amended notice of motion filed 13 March 2013. 5. Note that the first defendant by its solicitor has given an undertaking to present the lease for stamping. 6. Direct that any proposed cross-claim by the first defendant against Calliden Insurance Limited should be served on Calliden Insurance Limited and the parties by 5pm on 5 May 2013. 7. Stand over for directions on 22 April 2013 at 9.30am before the Judicial Registrar.
Catchwords:	PROCEDURE - joinder - insurer - need for pleadings - statutory charge - reasonable concern of ability of insured to meet judgment - obligation on insured to take reasonable care - construction - named insured - interested party - contractual obligation to indemnify - contractual obligation to obtain insurance
Legislation Cited:	Civil Procedure Act 2005, s 56 Duties Act 1997, s 304 Insurance Contracts Act 1984 (Cth), s48, s 54 Law Reform (Miscellaneous Provisions) Act 1946, s 6 Uniform Civil Procedure Rules 2005, r 6.19, r 6.24
Cases Cited:	Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 Campbell v Mutual Life and Citizens Fire and General Insurance Company (New Zealand) Limited [1971] NZLR 240 Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390 Schipp v Cameron (Supreme Court of New South Wales, Young J, 4 May 1995, unreported) Tzaidas v Child (2004) 61 NSWLR 18 Vero Insurance Ltd v Power Technologies Pty Ltd [2007] NSWCA 226
Category:	Interlocutory applications
Parties:	Julie Ann Mesiti (plaintiff) CPT Custodian Limited (first defendant/applicant on notice of motion) Glad Cleaning Service Pty Limited (second defendant) Jun Ku (third defendant) Sushi Nara Australia Pty Limited (fourth defendant) Top Green Management Pty Limited (fifth defendant) Calliden Insurance Limited (respondent on notice of motion)
Representation:	Mr S Walsh (first defendant/applicant on notice of motion) Ms Bassi (second defendant) Mr J Duncan (respondent on notice of motion) Thompson Cooper Lawyers Pty Ltd (first defendant/applicant on notice of motion) McCabes (second defendant) Hunt & Hunt (third defendant), (fourth defendant) and (respondent on notice of motion)
File Number(s):	2011/179950
Publication restriction:	No