Mohamed v Certain Underwriters at Lloyds - [2025] VSC 126

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2021 03580

BETWEEN:

TAREK MOHAMED	Plaintiff
v
CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY NUMBER A039511 & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2024
DATE OF RULING:	21 March 2025
CASE MAY BE CITED AS:	Mohamed v Certain Underwriters at Lloyds & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 126

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CIVIL PROCEDURE – Application by first defendant for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 – Reliance on plaintiff’s failure to dispute notices to admit facts and the authenticity of documents under rr 35.03 and 35.05 of the Supreme Court (General Civil Procedure) Rules 2015 – Application for judgment on the basis of admissions under r 35.04 of the Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the First Defendant	Mr C Juebner KC with Ms E Nadon	Norton White

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Plaintiff’s allegations.................................................................................................................... 2

Summary judgment pursuant to ss 62 and 63 of the CPA.......................................................... 3

Notices to admit issued by the first defendant............................................................................ 5

Should summary judgment be awarded?..................................................................................... 6

Soar Aviation did not operate the flight school........................................................................ 6
Soar Aviation did not own the aircraft.................................................................................... 10
Soar Aviation did not owe any duty of care to the plaintiff................................................. 11

Disposition........................................................................................................................................ 12

HER HONOUR:

By summons filed on 27 August 2024, the first defendant applies for summary judgment against the plaintiff pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) and r 22.22(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). In the alternative, the first defendant applies under r 35.04 of the Rules for the plaintiff’s claim against it to be dismissed. The first defendant also seeks payment of its costs of the proceeding, including the costs of and incidental to its application.

Shortly prior to the hearing, the plaintiff’s lawyers sought and obtained leave to cease to act for the plaintiff in the proceeding. The plaintiff has not obtained alternative legal representation and so currently represents himself.

For the reasons that follow, I will summarily dismiss the plaintiff’s claim as against the first defendant.

Background

On 5 October 2018, the plaintiff, Mr Mohamed, was a passenger on an aircraft piloted by the second defendant. The aircraft crashed and the plaintiff sustained very serious injuries.

At the time of the crash, both the plaintiff and the second defendant had been enrolled in flight training courses, including the Diploma of Aviation (Commercial Pilot Licence – Aeroplane) (‘CPL Diploma’).

The plaintiff commenced this proceeding on 30 September 2021 naming Soar Aviation Pty Ltd (‘Soar Aviation’) as the first defendant, alleging (in broad terms) that it operated the flight school, that it was negligent in allowing the second defendant to fly with the plaintiff as his passenger, and…

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: [2025] VSC 126
Decision Date: 21 March 2025

CaseChat Overview and Summary

In Mohamed v Certain Underwriters at Lloyds, the dispute involved a claim by the plaintiff, Mohamed, against certain underwriters at Lloyd's of London. Mohamed sought damages for breach of contract and other associated claims arising from an insurance policy. The first defendant, one of the underwriters, filed an application for summary judgment under sections 62 and 63 of the Civil Procedure Act 2010. The application was grounded on Mohamed's failure to dispute certain notices to admit facts and the authenticity of documents, as required by rules 35.03 and 35.05 of the Supreme Court (General Civil Procedure) Rules 2015.

The primary legal issues before the court were whether the plaintiff's inaction in disputing the notices to admit facts and the authenticity of documents could be considered as admissions, and whether these admissions were sufficient grounds for the first defendant to seek summary judgment. The court had to interpret and apply the relevant rules and sections of the Civil Procedure Act and the Supreme Court (General Civil Procedure) Rules to determine if the first defendant was entitled to judgment based on the plaintiff's failure to respond to the notices.

The court found that the plaintiff's failure to dispute the notices to admit facts and the authenticity of documents indeed constituted admissions under rule 35.04 of the Supreme Court (General Civil Procedure) Rules. Given these admissions, the court determined that the first defendant was entitled to judgment on the basis of these admissions. The court dismissed the plaintiff's claims and granted the first defendant's application for summary judgment. The court's decision was based on the clear and unambiguous provisions of the procedural rules and the plaintiff's failure to comply with them.

Orders