QBE Ins Ltd v Nominal Defendant

[1999] QCA 493

SUPREME COURT OF QUEENSLAND

CITATION:

QBE Ins Ltd v Nominal Defendant  [1999] QCA 493

PARTIES:

BORIS TRENEVSKI
(plaintiff)
v
ANTHONY GARY TURIANO
(first defendant)
QBE INSURANCE LIMITED
(ACN 000 157 899)
(second defendant/applicant/appellant)
THE NOMINAL DEFENDANT (QUEENSLAND)
(third party/respondent)

FILE NO/S:

Appeal No 8469 of 1999
DC No 3594 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 November 1999

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 1999

JUDGES:

Davies and Pincus JJA, Williams J

ORDER:

Appeal allowed with costs.  Order below set aside and in lieu the application made to the learned primary judge dismissed with costs.

CATCHWORDS:

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – third party notice claiming contribution from Nominal Defendant issued by defendant insurer – notice struck out – application of s 52A Motor Accident Insurance Act 1994 to claim for contribution – accident occurred before s 52A came into effect - whether right to contribution accrued before s 52A came into effect - application of s 40(2) Limitation of Actions Act 1974 – whether permissible for defendant insurer to make anticipatory claim for contribution in the absence of judgment or compromise

Hordern-Richmond Ltd v Duncan [1947] KB 545, applied
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, applied

Limitation of Actions Act 1974, s 40(2)
Motor Accident Insurance Act 1994, s 52A

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – REQUIREMENT OF NOTICE BEFORE ACTION – third party notice claiming contribution from Nominal Defendant issued by defendant insurer – whether notice requirements of s 37(5) Motor Accident Insurance Act 1994 satisfied – whether s 37(5) applicable to a claim for contribution

Young v Keong [1999] 2 QdR 335; [1998] QCA 100, distinguished

Motor Accident Insurance Act 1994, s 37(5)

COUNSEL:

Mr K  F Boulton for the applicant
Mr A P Goodman (not of counsel) for the respondent

SOLICITORS:

Delaney & Delaney (town agents for Windeyer Dibbs, Sydney) for the applicant
Gadens Lawyers for the respondent

1. THE COURT: This is an appeal from the District Court concerning a claim for contribution made by the appellant QBE Insurance Limited. A plaintiff, Mr Boris Trenevski, caused a plaint to be issued claiming damages for personal injuries arising out of a collision between two motor vehicles, one driven by Mr Trenevski and the other driven by a Mr Turiano. The plaintiff claimed damages for injuries said to have been suffered in the collision. He sued both Mr Turiano and the latter's insurer QBE; that was done because of the requirements of s 52(1) of the Motor Accident Insurance Act 1994 ("the 1994 Act"). A defence was delivered denying negligence and the defendants Mr Turiano and QBE issued a third party notice claiming indemnity…