Legal Research
Cases
Provident Capital Ltd v Gould

Provident Capital Ltd v Gould

Case [2009] NSWSC 1458 22 December 2009

Claims-Made Policy

Exclusion of Liability

Insurance Law

Statutory Interpretation

Insurance Law

No judgment structure available for this case.

Type to search within this case.

CITATION: Provident Capital Ltd v Gould [2009] NSWSC 1458
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2 July 2009, 29 July 2009

JUDGMENT DATE :
22 December 2009

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
(i) Leave be granted to the plaintiff under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 to commence proceedings and/or join to the current proceedings Lexon Insurance Pty Ltd;
(ii) Pursuant to Rule 6.24(1) of the Uniform Civil Procedure Rules 2005, Lexon Insurance Pty Ltd be joined as a party to these proceedings;
(iii) Costs of the application be costs in the cause;
(iv) Each party's rights are reserved to apply for any special or different order as to costs.

CATCHWORDS: PROCEDURE – insurance – construction and effect of s.6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) – circumstances in which a plaintiff can proceed directly against insurer of party alleged to be liable to pay damages to the plaintiff – claims-made policy – coincidence of year of claim and completion of tort – claim for exclusion of liability for dishonesty – issue arguable and matter for trial judge

LEGISLATION CITED: Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Campbell v Mutual Life and Citizens Fire and General Insurance Co (New Zealand) Limited [1971] NZLR 240
Commonwealth v Cornwell [2007] HCA 16; (2007) 229 CLR 519
FAI General Insurance Co. Ltd v Brian Albert McSweeney & Ors; Travel Compensation Fund v FAI General Insurance Co. Ltd [1997] FCA 152; (1997) 73 FCR 379
Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539
McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28; (2007) 157 FCR 402
Oswald v Bailey (1987) 11 NSWLR 715
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424
The Owners - Strata Plan No. 50530 v. Walter Construction Group Limited (In Liquidation) & Ors. [2007] NSWCA 124
Triden Properties Ltd v Capita Financial Group Ltd (NSWCA, Clarke, Scheller and Powell JJA, 15 November 1995, unreported)
Tzaidas v Child [2004] NSWCA 252; (2004) 61 NSWLR 18
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

PARTIES: Provident Capital Ltd (Plaintiff)
John Gould (Defendant)
Lexon Insurance Pte Ltd (Respondent)

FILE NUMBER(S): SC 20411/2007

COUNSEL: B K Nolan (Plaintiff)
D Grant (Solicitor) (Defendant)
C Needham SC (Respondent)

SOLICITORS: Tiernan & Associates Lawyers (Plaintiff)
Watson & Watson Solicitors (Defendant)
Middletons Lawyers (Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

22 DECEMBER 2009

20411/2007 Provident Capital Ltd v John Gould
JUDGMENT

1 HIS HONOUR: By motion on notice, the plaintiff, Provident Capital Ltd (“Provident”), seeks to join…

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 Provident Capital Ltd v Gould

Details

AGLC: Provident Capital Ltd v Gould [2009] NSWSC 1458
Case: [2009] NSWSC 1458
Decision Date: 22 December 2009

CaseChat Overview and Summary

The case of Provident Capital Ltd v Gould involved the plaintiff, Provident Capital Ltd, seeking to directly proceed against Gould’s insurer, based on a claim made policy. The plaintiff claimed that Gould, an employee, was dishonest and breached his employment contract, causing loss. The plaintiff argued that the insurer was liable under section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The primary dispute was whether the plaintiff could proceed directly against the insurer given the specifics of the claims-made policy and whether the insurer was liable for the employee's dishonest acts.

The central legal issue was whether the plaintiff could directly sue the insurer of Gould under section 6 of the Act, and if the claim fell within the policy period. Additionally, the court had to determine whether the claim for exclusion of liability for dishonesty was arguable and suitable for trial. The court needed to assess the coincidence of the year of the claim and the completion of the tort, as well as the validity of the claim under the policy terms.

The court found that the plaintiff could proceed directly against the insurer, as the claim was arguable and the issue of the insurer’s liability was one for the trial judge to decide. The court held that the coincidence of the year of claim and the completion of the tort was sufficient to permit the plaintiff to bring the action. Furthermore, the court noted that the exclusion of liability for dishonesty was an issue that needed to be determined in the trial, rather than being dismissed at the preliminary stage. Therefore, the matter was remitted to the trial judge to decide on the insurer's liability.

Orders