Nicholas v Astute Hire Pty Ltd
[2015] NSWSC 711
•5 June 2015
|
New South Wales |
Case Name: | Nicholas v Astute Hire Pty Ltd |
Medium Neutral Citation: | [2015] NSWSC 711 |
Hearing Date(s): | 15 May 2015 |
Decision Date: | 5 June 2015 |
Jurisdiction: | Common Law |
Before: | Hall J |
Decision: | (1) Leave granted to the defendant, Astute Hire Pty Ltd, to file and serve upon QBE Insurance Australia Limited the proposed Cross-Claim, a copy of which was marked MFI-1 dated 15 May 2015. |
Catchwords: | PROCEDURE – Civil – Personal injury proceedings – Plaintiff alleges liability of defendant for workplace accident – Application by defendant to join insurer of deregistered company to proceedings pursuant to s 601AG Corporations Act 2001 – Defendant proposed cross-claim against insurer - Whether there was a prima facie case of liability against deregistered company involved in workplace as subcontractor so as to allow claim against insurer – Whether there was an insurance policy in place – Prima facie case made out – Leave granted to defendant to join insurer under s 601AG |
Legislation Cited: | Civil Procedure Act 2005 |
Cases Cited: | Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd (2005) 62 NSWLR 148 |
Category: | Procedural and other rulings |
Parties: | Astute Hire Pty Ltd (Defendant/Applicant) |
Representation: | Counsel: |
File Number(s): | 2014/7170 |
JUDGMENT
Introduction
An application was made by way of a Notice of Motion filed on 10 April 2015 by Astute Hire Pty Ltd, the defendant, in proceedings initiated by the plaintiff, Nabil Nicholas, in which he claims an award of damages for personal injury. The history of the proceedings is summarized below.
The plaintiff at the date of accident, 9 June 2008, was employed by Astute Hire Pty Ltd in relation to the upgrade of North Sydney Railway Station. The principal for the project was Bovis Lend Lease Pty Ltd and that company engaged QMC as the main subcontractor for the project. QMC is alleged to have engaged Ontrack Pty Ltd as a subcontractor to undertake certain materials handling work involving the removal of building materials from the site. Ontrack is alleged to have provided the machinery and an operator, a Mr Graham, for the purposes of the subcontract between Ontrack and QMC.
The Proceedings
On 9 January 2014, the plaintiff filed a Statement of Claim against Astute Hire Pty Ltd as defendant. The plaintiff alleged that at all material times he was employed by the defendant and on the date of the accident he was required by his employer to stand on the rear of a truck which was being loaded with steel beams. The allegation is that one of the steel beams, once it was released from the chains which held it, fell and struck him on the legs and the plaintiff was trapped underneath it: Statement of Claim at [3].
The plaintiff alleged that the accident occurred by reason of the negligence of the defendant, Astute Hire Pty Ltd: Statement of Claim at [4]. In consequence of the accident the plaintiff’s case is that he suffered severe injury to his right knee and leg requiring surgery, and resulting in disability. The claim seeks damages in respect of various heads of economic loss.
On 10 February 2014, the defendant filed a Defence and raised, in particular, a ground under s 151D of the Workers Compensation Act 1987 asserting that the plaintiff had failed to bring the proceedings within time.
On 12 December 2014, a Notice of Motion to extend time was filed and on 10 April 2015 this Court (RS Hulme J) extended the time for the commencement of proceedings.
On 15 April 2014, a Statement of Cross-Claim was filed on behalf of the defendant, Astute Hire Pty Ltd against Bovis Lend Lease Pty Ltd.
On 30 July 2014, a Notice of Motion was filed on behalf of the defendant seeking leave to file a cross-claim against Bovis Lend Lease Pty Ltd and Ontrack.
On 10 April 2015 an Amended Notice of Motion was filed to join the respondent to the present application, QBE Insurance Australia Limited (“QBE”), as a cross-defendant alleging that QBE was the insurer under a Policy of Insurance issued to Ontrack, that company having been deregistered.
The Cross-Claim sought contribution and/or indemnity pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 and indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act once Ontrack had been reregistered for the purposes of the claim.
On 16 April 2015, the First Cross-Claim was filed against Bovis Lend Lease Pty Ltd.
It is the application of 10 April 2015 seeking leave to join QBE Insurance Australia Limited pursuant to s 601AG of the Corporations Act 2001 (Cth) which is the subject of this judgment.
The Application
This judgment is concerned with whether leave is to be granted to the applicant/defendant, Astute Hire Pty Ltd, to cross-claim against QBE. QBE opposes the application and denies that Ontrack had “a liability” within the meaning of s 601AG and further denies that the insurance contract issued by it to Ontrack Pty Ltd covered any liability that arose immediately before the deregistration of Ontrack.
At the hearing, Mr Blount of counsel, who appeared for the defendant/applicant, relied upon a revised form of proposed cross-claim against QBE entitled “Second Cross Claim” (MFI-1).
Mr Blount stated at the hearing that the plaintiff and Bovis Lend Lease Pty Ltd neither consented nor opposed the orders sought by the applicant/defendant: T 3.
Evidence on the Application
Evidence for the Defendant
On the hearing of the application the defendant relied upon the following affidavits:
Affidavit of Nicholas Studdert sworn 30 July 2014;
Affidavit of Nicholas Studdert sworn 16 October 2014;
Affidavit of Nicholas Studdert sworn 14 May 2015.
All affidavits were read without objection.
Ms Berberian of counsel, who appeared for the proposed cross-defendant, QBE, relied upon the following:
Statement of Mr Russell Graham 18 February 2015 (which I have marked as Exhibit A).
Payroll Activity sheet for Mr Russell Graham from 9/06/2008 to 15/06/2008 (Exhibit 1)
Payroll Advice for Mr Russell Graham from 9/06/2008 to 15/06/2008 (Exhibit 2)
Letter from Infraworks Services Pty Ltd to Russell Graham dated 23 October 2008 (Exhibit 3)
Statement of the plaintiff dated 3 August 2014 (Exhibit 4)
Affidavit of Kerry Anne Smith, solicitor, affirmed 13 May 2015.
Affidavit of Simon Meigan sworn 27 August 2014 (admitted subject to relevance).
Overview
On or around 24 October 2012, the directors of Ontrack applied to Australian Securities and Investment Commission for voluntary deregistration. As a result, Ontrack was deregistered as an Australian company on 25 December 2012.
Before the deregistration of Ontrack and at the time of the plaintiff’s alleged injury, that is to say, 9 June 2008, Ontrack held a policy of Public Liability Insurance with QBE Insurance Group Limited, the proposed second cross-defendant.
The applicant defendant’s application is, in part, premised upon the basis of its contention that the proceedings are capable of being maintained against QBE pursuant to s 601AG of the Corporations Act 2001 (Cth). It was argued for the applicant/defendant that such a course would avoid the requirement of re-registering Ontrack to the ASIC registry, abating potential delay and costs associated with such a course.
In the applicant’s/defendant’s Written Outline of Submissions it was submitted that the causes of action sought to be relied upon arise out of the same factual circumstances underlying the plaintiff’s principal cause of action. On that basis it was submitted that the proposed cross-claim would be inextricably interwoven with and related to or connected with the subject of the plaintiff’s first proceeding.
It was submitted that if leave were not granted as sought on the present application the defendant would be prevented from bringing a cause of action relevant to the current proceedings.
It was further submitted that the applicant/defendant has been diligent in investigating and pursuing potential cross-claims.
Additionally, it was argued for the applicant that the exercise of the discretion in favour of it as sought in the application was consistent with the overriding purposes and objects of the Civil Procedure Act 2005 and the UCPR. It would mean that all claims would be heard together and ensure finality. There was obvious benefit, it was submitted, in the avoidance of multiplicity of proceedings. Further, it was contended that significant injustice or prejudice to the defendant would be avoided by ensuring that it is able to exercise its rights to pursue the cross-defendants.
Statutory Provisions
Before turning to the merits of the application brought by the defendant, Astute Hire Pty Ltd, I turn to the requirements of the statutory provisions relating the right to bring a cross-claim which govern the present application.
Section 22(1) of the Civil Procedure Act 2005 provides that,
Subject to s 22(2) the court may grant to the defendant in any proceedings (“the first proceedings”) such relief against any person as the court may grant against that person in separate proceedings commenced by the defendant for that purpose.
Uniform Civil Procedure Rules Part 9, Rule 9.1, provides that a party (the cross-claimant) may make a cross-claim in proceedings commenced by Statement of Claim as prescribed or within such further time as the court may allow.
Section 22 of the Civil Procedure Act permits cross-claims against third parties where such claims are connected with the subject matter of the plaintiff’s claim. It is to be noted that the degree of connection sufficient to justify a cross-claim against a third party is prescribed in s 22(2) in general terms. They do not expressly require a substantial degree of similarity, but the presence or absence of any appropriate degree of connection is likely to influence the exercise of a procedural discretion concerning the conduct of proceedings in relation to cross-claim proceedings: Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665 at 674; Richie’s Civil Procedure NSW, Vol 1 at s 22.10.
Section 22(2) provides:
“Relief may not be granted under this section against a person who is not a plaintiff in the first proceedings unless the relief relates to, or is connected with, the subject of the first proceedings”. (emphasis added)
The provisions of s 22 of the Civil Procedure Act are to be read in relation to the relevant rules under the UCPR.
It has been held that the s 22 is procedural only and the substantive rights to claim contribution must exist independently: Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323.
As noted above, section 601AG of the Corporations Act (Cth) is relied upon in the present application in circumstances in which Ontrack Pty Ltd has been deregistered.
Section 601AG provides:
Claims against insurers of deregistered company
A person may recover from the insurer of a company that is deregistered an amount that was payable to the company under the insurance contract if:
(a) the company have a liability to the person; and
(b) the insurance contract covered that liability immediately before deregistration.
In Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd (2005) 62 NSWLR 148 it was observed at [19]:
“Section 601AG creates a new cause of action. The action is not a claim for damages. It is for an amount that was payable to the deregistered company under the relevant insurance contract. A claim in terms of s 601AG is subject to two conditions, namely, proof that the registered company ‘had a liability’ to the person claiming and that the insurance company covered that liability immediately before deregistration.”
As noted in that case, the two conditions are expressed in the past tense. The inference is that the time for determining whether the deregistered company had a liability to the person claiming, and whether the contract covered that liability, is immediately before deregistration.
Grounds for Opposing the Application for Leave
In the present case, the application for leave to serve the cross-claim on QBE was opposed upon the basis that there was no “liability” established in respect of Ontrack Pty Ltd and, secondly, that the insurance contract issued by QBE to that entity did not cover any such “liability” of Ontrack to the plaintiff: QBE’s Written Submissions at [7].
“Liability”
It was submitted on behalf of the QBE that the evidence did not establish liability in Ontrack to the plaintiff. Reliance in particular was placed upon the plaintiff’s statement of 3 August 2014 (Exhibit 4), including his account of the accident as set out at [9] of that statement. There, the plaintiff recorded;
“… At around 3:30pm a further beam was being lowered by crane and the beam had been lowered so that no tension was left on the chains. I undid one chain on the left side of the beam and then was moving across to the right of the beam to undo the second chain. The beam however slid from the chain; in an attempt to avoid the beam striking me, I quickly moved out of the way but my foot was caught between the two steel beams on the rear of the truck. I fell from the edge of the truck with my foot still trapped between the beams …”
It was submitted that the present application should be considered in light of the way in which the plaintiff had pleaded and related the events leading to the accident.
It is clear on the evidence that Bovis Lend Lease was the principal in relation to the above project and QMC was the main contractor or subcontractor to Bovis Lend Lease.
There is evidence in the present application that is capable of supporting, on a prima facie basis, the proposition that Ontrack was the supplier of the truck containing a crane and it, by its employee, Mr Graham, operated the crane at the time of the accident.
It was argued for Astute Hire that he was the employee of Ontrack and the contract of insurance held by Ontrack with QBE appropriately responds to the claim by the plaintiff.
Mr Blount submitted that it was not necessary that I make a final determination as to the issue of “liability” of Ontrack or that I finally determine that the insurer QBE has an obligation to pay any judgment amount. He submitted that I was only required to determine that the allegations made by Astute Hire are related to or connected with the subject-matter of the plaintiff’s proceedings. The need for leave was said to arise by reason of the expiration of the 28‑day period specified for the filing of a cross-claim: UCPR 9.1.
Liability: Section 601AG
The legal relationship between Mr Graham and Ontrack and Ontrack and QMC is not an issue upon which a final determination can or should be made on a leave application under s 22 of the Civil Liability Act and Part 9, r 9.1 of the UCPR.
QBE contended that the proposed cross-claim was misguided and inconsistent with the evidence: QBE’s Written Submissions at [10]. Reliance was placed upon a statement of Mr Russell Graham dated 15 October 2014 to support the proposition, inter alia,
That he was not an employee of Ontrack but of another entity, “Napier”.
The truck was owned by Napier.
Bovis Lend Lease Pty Ltd gave instructions to Mr Graham
Ontrack did not provide supervision at the site.
It was submitted as a result that there was no basis for the allegation that Ontrack owed a duty of care as pleaded in the proposed cross-claim.
Similarly it was contended there was no evidence of breach of duty as Bovis Lend Lease supervised the plaintiff.
It was also argued for QBE that the issue of liability is to be examined in light of the way the plaintiff says the accident occurred and that the defendant cannot be in a worse position than on the facts as have been recorded by the plaintiff: T 16:35-45. The defendant, it was argued, should not be entitled to conduct a case upon an alternative scenario against QBE. I note that no authority is cited for that proposition. A cross-claimant claiming contribution or indemnity is not limited by the evidence that a plaintiff may rely upon.
Whilst Ms Berberian properly accepted that there was not a “high threshold” that the defendant had to satisfy in relation to the two limbs of s 601AG, on the present application, it not involving a final determination on the issue of liability, a number of submissions were directed to the facts of the accident and statements made in relation thereto by the plaintiff, by Mr Graham and by Mr Sapountzis (and the plaintiff’s expert). These are relevant to the issue of “duty” and “breach” in relation to Ontrack.
Having read the above statements, report and other documents concerning the accident, including in particular those annexed to Mr Studdert’s affidavit sworn 30 July 2014, I am of the opinion that there is a considerable amount of evidence, which if accepted at trial, could establish liability in Ontrack on the proposed second cross-claim.
Issues have been raised as to the ownership of the truck on which the crane was mounted and as to the identity of Mr Graham’s employer. I will return to these matters below.
In some cases, by reason of the nature of and the changing features of contractual arrangements in the building/construction industry the whole of the evidence relevant to the same in a particular case such as the present, will often require examination. Whilst Exhibit 1 relates to Payroll Activity concerning Mr Graham, stated as commencing on the very day of the plaintiff’s accident (the period is stated as 9/6/2008 to 15/6/2008) and Exhibit 2 which bears a payment date one day after the accident (10 June 2008) there is other evidence indicating that Ontrack was the contracting operating company in respect of machine hire on the North Sydney Railway Station renovation/construction site.
In a statement given by Mr Graham dated 18 February 2015, Mr Graham explained the circumstances in which Ontrack was the relevant company under which he worked on the day of the plaintiff’s accident:
“[8] At the time of Nabil Nicholas’ alleged injury on 9 June 2008 I was employed by Napier Constructions Pty Ltd. The company was initially M&K Napier Constructions Pty Ltd until the business was sold during the time that the North Sydney station site and following the sale became Napier Constructions Pty Ltd. However Napier Constructions was not permitted on the site due to that business being caught up in an ICAC inquiry due to misappropriation. Therefore on the weekend that the injury occurred to Nabil Nicholas I was working for Ontrack Rail as management used this company in order to get access to the site and retain the work that was associated with that job. There was a family connection between the two companies at the time and therefore the two companies had a link which management used in order to retain the work. From my perspective I was employed by Napier Constructions but when required to work on a site that Napier Constructions was prohibited from working on I was employed by and paid by Ontrack Rail; it depended on what docket book was in the truck is the one that you used. Therefore on this occasion since Napier Constructions were prohibited from working on this site I was on the site as an employee of Ontrack Rail.”
On the evidence in the present application, I have concluded that there is evidence that supports an arguable case that Ontrack was the entity that provided the truck/crane and engaged Mr Graham as operator of the same. There is evidence that Mr Graham was the person who had control on site of the operations involving the loading of the steel beams onto the truck, he being operator of the crane on the day of the plaintiff’s accident up to the time of the plaintiff’s accident. As such, the evidence establishes an arguable case that he, along with others involved in on-site operations, had a duty to ensure that the plaintiff was not exposed to a foreseeable risk of injury arising from the operation of the crane and loading activities. Whether Bovis Lend Lease was also subject to a similar duty does not of itself necessarily detract from or displace Ontrack’s duty of care.
The material annexed to Mr Studdert’s affidavit sworn 30 July 2014 indicates that the plaintiff was working at the time of his accident in accordance with a system and procedure that was plainly a potentially hazardous one. It involved the plaintiff standing on the tray of the truck when extremely heavy steel beams were lowered by the crane operator, Mr Graham, supported by chains. The chain slipped or moved causing the steel beam to move causing the plaintiff to quickly attempt to jump out of the way of the moving beam. The weather had been inclement during the afternoon of the accident.
In these circumstances, lowering such a heavy steel beam when the plaintiff was up on the tray before the beam was safely in place potentially exposed him to a foreseeable risk that he would be at risk if the beam moved towards him in the course of the act of placing the beam onto the truck. Unless and until the beam being lowered was made secure by ensuring it was well supported upon a fixed surface before releasing either of the chains, any worker in proximity to it was exposed to a potentially serious hazard.
The accident was investigated by Transport Infrastructure which produced a report designated BLL 29305 (undated). The report recorded, inter alia, that at the time of the accident environmental conditions (which included lighting) were “poor”, and “very slippery underfoot”. It recorded that the “On Track” vehicle had been used to stack structural steel members on the back of the truck and “Whilst unhooking the chains from the steel member the piece of steel slipped/moved forward towards the employee”: Report p 2 of 11. The report identified Ontrack as operator and Mr Graham its employee. The report stated “Fatigue could be a major contributor, approaching the end of shift 3 massive days loss of concentration + net slippery conditions”.
An Employer Injury Claim Report was made for WorkCover purposes on 16 June 2008. It nominated Astute Hire Pty Ltd as “employer”. In answer to the question “do you believe that the injury was caused or contributed to by the worker? …” a handwritten entry stated “Yes, the operator of the truck being loaded and/or the vehicle”. That entry, of course, is not necessarily to be taken as a first-hand account of the accident. Mr Sapountzis in his statement dated 4 February 2014 stated that he was not at the work site at the time of the accident. He, however, issued an “Incident Report” on 9 June 2008 in which he recorded:
“5 CORRECTIVE ACTIONS TO BE TAKEN
● The hirail provider should be aware of what items he is lifting especially during inclement weather conditions and how that impacts other persons.
● The hirail provider should not allow persons near or on the hirail tray when lifting and dropping items. Persons assisting the hirail shall unhook the loads only when the load is securely on the tray and the hirail operator is satisfied that the load is safe to work around.”
Finally, I note that the report of Mr David Dubos dated 19 August 2011 served by the plaintiff’s solicitors, states:
“[33] Detection and recognition of safety hazards is the first basis of safety management. The Plaintiff was directed to work on the rear tray of a truck in conjunction with a Hiab crane operation to unsling heavy steel beams and load them securely on the rear of the truck. The Plaintiff had no training or experience in this task and was subject to the procedures put in place by Ontrack Rail at the time of his accident. My instructions indicate that the Plaintiff was put in a position of risk for his safety and due to either his inexperience, the incorrect or unexpected operation of the Hiab crane or a combination of both, the Plaintiff suffered injury in the Astute Hire system of work. Regular inspection of work practices and the working environment, including equipment, using a procedure and a checklist is the method by which hazards are systematically identified so that they can be rectified. If work practices are not first inspected and then assessed and action taken for safety then safety is left to chance.”
I am satisfied on the evidence adduced by the applicant/defendant that the first limb of s 601AG “liability”, is established to the standard required for the purpose of determining the present leave application.
Insurance: Section 601AG
The relevant Contract of Insurance is evidenced by the following documents:
(1)A Certificate of Currency for Policy number ISP 008559 for Ontrack Rail Pty Ltd for “dry hire of item” current to 12 October 2008.
(2)The terms of the Industrial Special Plant Insurance Policy including section 7 entitled “Broadform Liability”.
(3)An endorsement for Policy number ISP 008559 extending, for consideration, the reach of the insurance to “wet and dry hire of machinery” for the period 10 May 2008 to 12 October 2008.
The submission for the defendant/applicant was that the Policy covers the liability of Ontrack in respect of the plaintiff’s personal injury of 9 June 2008 resulting from the accident in connection with its business of hiring plant and equipment with an operator.
Copies of the documentation in relation to the Insurance Policy referred to in [61_Ref421202185] above were annexed to the affidavit of Mr Studdert sworn 16 October 2014.
The Industrial Special Plant Policy was issued by QBE for the period 12 October 2007 to 12 October 2008. It accordingly was in force at the time of the plaintiff’s accident on 9 June 2008.
Section 7, “Broadform Liability” contains the relevant insurance clause and provides;
“A The Cover
The Underwriters shall indemnify the Insured against Legal Liability for Personal Injury or Property Damage first occurring during the Period of Insurance and caused by an Occurrence in connection with the Business.”
The Policy defines “Insured” to mean “those named in the Schedule as the Insured” which is noted to be “Ontrack Rail Pty Ltd”.
According to the Schedule “Business” is defined as “DRY HIRE OF ITEM including property owners and/or occupier’s liability only”. Reference was also made in the course of submissions to the “MASTER SCHEDULE OF MACHINES” as forming part of the Policy which was said not to list the subject truck.
An endorsement of the Policy for the period 10 May 2008 to 12 October 2008, dated 2 May 2008, referred to “Business” as “WET AND DRY HIRE MACHINERY”. Accordingly, the endorsement would cover the truck with crane attached, operated by Mr Graham.
The General Section of the Industrial Special Plant Insurance Policy defines “employee” as including a person who is:
1. Employed by an Insured under a Contract of Service;
…
3. hired or seconded to an Insured by another”
Whilst the issue of the employment is not one requiring a final determination on the present application, there is, in my opinion, sufficient evidence to establish that the plaintiff was under the control of the defendant/applicant as an “employee” of an Insured (his employer) within the meaning of the above definition.
The endorsement referred to at [68_Ref421265220] dated 2 May 2008 was made to the Policy, Section 7 – BROADFORM LIABILITY, in the following terms:
“BUSINESS: WET AND DRY HIRE OF MACHINERY Including property owners and/or occupiers liability only.” (emphasis added)
Submissions were made as to the meaning and possible significance of the terms of this endorsement and doubt expressed as to the proper meaning to be attributed to it. The word “including” is inclusive, whilst the word “only” has a meaning which excludes.
Consistent with ordinary principles of construction of legal instruments, including contracts, (whether contracts of insurance or otherwise), it is necessary to construe the provisions of Section 7, “broadform liability”, including the endorsement made on 2 May 2008, in the context of the Policy provisions as a whole, Section 7 forming but one part of the Contract of Insurance.
Whilst the present application does not admit of or require final determination on the issue, I proceed to make the following observations on the above question of construction concerning the “Cover” provided by the Policy.
The above provisions contained in the endorsement dated 2 May 2008 relating to broadform liability is to be construed in the context of the Policy as a whole. In the body of the Policy, Section 7, “broadform liability”, the cover is stated in broad terms to provide indemnity for the Insurer “against legal liability for personal injury … during the Period of Insurance and caused by an Occurrence in connection with the Business.” Plainly, the nature of scope of the insurance cover thereby afforded is not limited to occupier’s liability.
QBE argued that the claim was said to be not an occupier’s liability claim as Ontrack’s liability cannot be characterised as arising in the context of an “occupier” as that concept is commonly understood.
The endorsement to the Policy, in particular, Section 7, is not expressly stated to limit the scope of the terms of the broadform liability appearing in the Policy itself (at p 34 of the annexures to Mr Studdert’s affidavit of 14 May 2015). Further, I am of the opinion, at least on the evidence in the present application, that it is arguable that there are no circumstances from which an implication can be made that the endorsement to Section 7 was intended to contract or limit or confine the broad cover provided under section 7 in respect of legal liability for personal injury. Accordingly, the word “only” arguably would be insufficient to change the nature and/or extent of the cover under the Policy. Whilst the precise scope and meaning of the endorsement itself is not entirely clear it does not, with respect, operate, as was submitted on behalf of QBE, to, in effect, convert the Policy to an occupier’s liability policy only.
I accordingly do not accept the submission made on behalf of QBE that the Policy was limited to occupier’s liability.
As the decision of Barrett J (as his Honour then was) in Kelley v Western Pacific Insurance Ltd [2010] NSWSC 1397 indicates at [10], it is sufficient for the present application that it appears at a prima facie level that Ontrack held relevant insurance from QBE at the relevant time (that is, at the time the company having the benefit of the insurance is deregistered). I am so satisfied in the present case.
Accordingly, the two conditions required for the operation of s 601AG have, in my assessment, been satisfied on the evidence in this application.
I have concluded that leave should be given to Astute Hire Pty Ltd pursuant to s 22 of the Civil Procedure Act and Part 9 Rule 9.1 of the UCPR to file the Amended Cross-Claim marked as MFI-1 in the application.
Orders
On the Amended Notice of Motion filed 10 April 2015 I make the following orders:
(1)That leave be granted to the defendant, Astute Hire Pty Ltd, to file and serve upon QBE Insurance Australia Limited the proposed Cross-Claim, a copy of which was marked MFI-1 dated 15 May 2015.
(2)Subject to any matter counsel may wish to raise, I order that costs of and incidental to the application for leave to file the proposed Cross-Claim, be the applicant/defendant’s costs in the cause.
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