Nader v Aboulahaf - [2014] NSWDC 14

District Court

New South Wales

Medium Neutral Citation: Nader v Aboulahaf [2014] NSWDC 14
Decision date: 07 February 2014
Before: Cogswell SC DCJ
Decision:
(1) Dismiss the four notices of motion.
(2) Dismiss any cross claims filed by the defendants in the proceedings against the Nominal Defendant.
(3) Order the defendant applicant to pay the respondent Nominal Defendant's costs of the notice of motion.

Catchwords: INSURANCE - motor vehicles - compulsory third party insurance - unidentified vehicle - all prerequisites for driver to join Nominal Defendant not met - "full" but not "satisfactory" explanation given in time - "full details of allegations made" as then known provided to Nominal Defendant in time - due inquiry and search not made.
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 36.
Cases Cited: Blandford v Fox (1944) 45 SR (NSW) 241.
Cavanagh v Nominal Defendant [1958] HCA 57; 100 CLR 375.
Nominal Defendant v Meakes [2012] NSWCA 66.
Nominal Defendant v Staggs [2010] NSWCA 224; 79 NSWLR 309.
Oztan v NSW Ministerial Corporation (1995) 23 MVR 259.
Category: Interlocutory applications
Parties: Ali Nader, Khadije Nader, Mohamad Nader, Moustafa Younes (Plaintiffs)
Youssef Aboulahaf (Defendant/Applicant)
Nominal Defendant (Respondent to Application)
Representation: Counsel:
M A Kumar (Defendant/Applicant)
J B Turnbull (Respondent to Application)
Dr W A J Higgs (Plaintiffs)

File Number(s): DC 2013/00110433; DC 2013/00110406; DC 2013/00110496; DC 2013/00317362

Judgment

Introduction

A tragic accident happened two years ago on 11 February 2012. A 17 year old young man lost control of his car, ran off the road and hit a 14 year old boy who was standing on the nature strip. The boy was killed instantly.

The boy's mother, two of his brothers and a cousin have sued the driver of the car in this Court, claiming damages for nervous shock. The driver says that his car was hit by another car and it was that collision which caused him to lose control. That obviously raises a question about whether the driver of the other car should be sued as well. But the other car left the scene and cannot be traced yet.

In these circumstances - where an accident involves an unidentified car - the law in New South Wales provides that a person injured in the accident can sue an artificial person, created by statute, called the Nominal Defendant. The plaintiffs in the cases I am dealing with sued the driver but not the Nominal Defendant. The driver now wants to join the Nominal Defendant to the cases against him but the law has certain prerequisites for joining the Nominal Defendant, including time limits. The Nominal Defendant opposes any order to join it as a defendant. The Nominal Defendant says that the driver has not complied with three of the legal prerequisites for joining it in the case. What I have to decide is whether the driver has complied with those prerequisites.

Parties

The contest is effectively between the driver's third party insurer, which is NRMA Insurance, 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.

Continue reading Nader v Aboulahaf

Details

AGLC: Nader v Aboulahaf [2014] NSWDC 14
Case: [2014] NSWDC 14
Decision Date: 07 February 2014

CaseChat Overview and Summary

Nader v Aboulahaf was a case before the court involving a dispute over compulsory third party insurance in relation to a motor vehicle accident. The plaintiff, Nader, sought compensation from the defendant, Aboulahaf, who was identified as the driver of the vehicle involved in the accident. However, the plaintiff subsequently discovered that the vehicle was driven by a third party, and sought to add this third party as a defendant. The legal issues that arose from this situation included whether the plaintiff had complied with the requisite legal procedures to join the third party as a defendant, and whether the defendant had been prejudiced by any delay in identifying the third party.

The court examined the procedural requirements for joining a third party as a defendant in an insurance claim, and found that the plaintiff had not fully satisfied all the necessary conditions. While the plaintiff had provided a "full" explanation of the circumstances surrounding the accident, the court found that this explanation was not "satisfactory" in the context of the legal requirements. Furthermore, the court found that the plaintiff had not conducted a due inquiry and search to identify the third party, and had therefore not met all the prerequisites for joining the third party as a defendant. The court also noted that the plaintiff had provided the "full details of allegations made" as then known to the defendant in a timely manner.

As a result of these findings, the court dismissed the plaintiff's four notices of motion, any cross claims filed by the defendants, and ordered the plaintiff to pay the defendant's costs of the notice of motion. This decision highlights the importance of strictly adhering to legal procedures when seeking to join a third party as a defendant in an insurance claim, and the potential consequences of failing to do so.

Orders

Orders of the court

(1) Dismiss the four notices of motion.

(2) Dismiss any cross claims filed by the defendants in the proceedings against the Nominal Defendant.

(3) Order the defendant applicant to pay the respondent Nominal Defendant's costs of the notice of motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Nader v Aboulahaf [2014] NSWDC 14
Decision date:	07 February 2014
Before:	Cogswell SC DCJ
Decision:	(1) Dismiss the four notices of motion. (2) Dismiss any cross claims filed by the defendants in the proceedings against the Nominal Defendant. (3) Order the defendant applicant to pay the respondent Nominal Defendant's costs of the notice of motion.
Catchwords:	INSURANCE - motor vehicles - compulsory third party insurance - unidentified vehicle - all prerequisites for driver to join Nominal Defendant not met - "full" but not "satisfactory" explanation given in time - "full details of allegations made" as then known provided to Nominal Defendant in time - due inquiry and search not made.
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), s 36.
Cases Cited:	Blandford v Fox (1944) 45 SR (NSW) 241. Cavanagh v Nominal Defendant [1958] HCA 57; 100 CLR 375. Nominal Defendant v Meakes [2012] NSWCA 66. Nominal Defendant v Staggs [2010] NSWCA 224; 79 NSWLR 309. Oztan v NSW Ministerial Corporation (1995) 23 MVR 259.
Category:	Interlocutory applications
Parties:	Ali Nader, Khadije Nader, Mohamad Nader, Moustafa Younes (Plaintiffs) Youssef Aboulahaf (Defendant/Applicant) Nominal Defendant (Respondent to Application)
Representation:	Counsel: M A Kumar (Defendant/Applicant) J B Turnbull (Respondent to Application) Dr W A J Higgs (Plaintiffs)
File Number(s):	DC 2013/00110433; DC 2013/00110406; DC 2013/00110496; DC 2013/00317362