Nicholas v Astute Hire Pty Ltd - [2015] NSWSC 711

Supreme Court

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. (2) Subject to any matter counsel may wish to raise, 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.
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 Corporations Act 2001 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 Workers Compensation Act 1987
Cases Cited:	Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd (2005) 62 NSWLR 148 Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665 Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323 Kelley v Western Pacific Insurance Ltd [2010] NSWSC 1397
Category:	Procedural and other rulings
Parties:	Astute Hire Pty Ltd (Defendant/Applicant) QBE Insurance (Australia) Limited (Respondent/Proposed Cross-Defendant)
Representation:	Counsel: S Blount (Defendant/Applicant) TA Berberian (Respondent/Proposed Cross-Defendant) Solicitors: Sparke Helmore Lawyers (Defendant/Applicant) Hicksons (Respondent/Proposed Cross-Defendant)
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…

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.

Keep reading for free

Create a free CaseChat account to read Nicholas v Astute Hire Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 711
Decision Date: 5 June 2015

CaseChat Overview and Summary

In the case of Nicholas v Astute Hire Pty Ltd, the plaintiff, Nicholas, brought personal injury proceedings against Astute Hire Pty Ltd, the defendant. Nicholas alleged that the defendant was liable for a workplace accident. The defendant applied to join the insurer of a deregistered company to the proceedings, pursuant to section 601AG of the Corporations Act 2001. The defendant also proposed a cross-claim against the insurer.

The legal issues before the court were whether there was a prima facie case of liability against the deregistered company, which was involved in the workplace as a subcontractor, and whether there was an insurance policy in place. The court considered the evidence presented and determined that a prima facie case had been made out. The court found that the deregistered company was liable for the workplace accident and that an insurance policy was in place. Consequently, the court granted leave to the defendant to join the insurer under section 601AG of the Corporations Act 2001.

The court's decision hinged on the establishment of a prima facie case of liability against the deregistered company and the existence of an insurance policy. The court found that both conditions were met, and thus, the defendant was allowed to join the insurer in the proceedings. The court recognised the importance of ensuring that the parties involved in the workplace accident were held accountable for their actions and that the plaintiff received appropriate compensation.

The final orders of the court included granting the defendant leave to join the insurer of the deregistered company in the proceedings and allowing the defendant to pursue a cross-claim against the insurer. This decision ensured that all parties involved in the workplace accident were held accountable and that the plaintiff could seek compensation from the appropriate sources.

Orders