QBE Insurance (Australia) Ltd v Taylor - [2011] WADC 197

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: QBE INSURANCE (AUSTRALIA) LTD -v- TAYLOR [2011] WADC 197

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 2 NOVEMBER 2011

DELIVERED : 11 NOVEMBER 2011

FILE NO/S: CIV 257 of 2011

BETWEEN: QBE INSURANCE (AUSTRALIA) LTD
Plaintiff
AND
ANNA EUGENIE TAYLOR
First Defendant
JASON ELLIOTT TAYLOR
Second Defendant
STOCKLAND SOUTH BEACH PTY LTD
Third Defendant

Catchwords:

Summary judgment - Defendants application

Legislation:

Rules of the Supreme Court 1971 (WA) O 16

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr A P Hershowitz
First Defendant             :     Mr A J N Aristei
Second Defendant         :     Mr A J N Aristei
Third Defendant           :     Mr D C McKimmie

Solicitors:

Plaintiff:     Polczynski Lawyers
First Defendant             :     Western Legal
Second Defendant         :     Western Legal
Third Defendant           :     Norton Rose Australia

Case(s) referred to in judgment(s):

Commonwealth Bank of Australia v Hanley [1998] NSWSC 1032
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407
Morgan v Pallister [2004] WASC 188
Reliance Developments (NSW) Pty Ltd v Lumley General Insurance Ltd [2008] NSWSC 172
Shurmur v Young (1889) 5 TLR 155
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
WMC Resources Ltd v Roche Mining Pty Ltd [2004] WASC 76

PRINCIPAL REGISTRAR GETHING: By application dated 16 February 2011 the first and second defendants, Jason and Anna Taylor ('the Taylors'), seek summary judgment against the plaintiff, QBE Insurance (Australia) Limited ('QBE').

Background

The background facts to the application are that, by contract dated 23 August 2007, the Taylors entered into a contract ('Contract') with the third defendant, Stockland South Beach Pty Ltd ('Stockland'), to purchase Apartment 4B in the Islands Apartments in North Coogee ('the Apartment') from Stockland.
The Taylors paid the deposit for the Contract, in the amount of $172,100, by way of a deposit bond ('Deposit Bond') issued by QBE in favour of Stockland. The Deposit Bond was issued on 20 September 2007. There was a parallel contract between QBE and the Taylors containing an indemnity pursuant to which the Taylors would indemnify QBE for moneys paid out pursuant to the Deposit Bond.
Pursuant to the Contract, settlement was due for 2 June 2010. The Taylors did not settle on the due date, and have not since settled.
Following the failure of the Taylors to complete settlement, Stockland made a demand on the Deposit Bond to QBE. QBE paid Stockland the amount of the Deposit Bond. QBE then made a demand on the Taylors pursuant to the indemnity. The Taylors did not make a payment in response to the demand.
In this action, CIV 257 of 2011, QBE sued the Taylors on the indemnity.
In a related action (CIV 339 of 2011) Stockland sued the Taylors for breach of the contract to purchase the Apartment.
In support of its application for summary judgment, the Taylors filed affidavits of:
(a)Kristin Ho, an articled clerk employed by their solicitors, sworn 16 February 2011, annexing a draft affidavit from Mr Taylor; and
(b)Jason…

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.

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Details

Case: [2011] WADC 197
Decision Date: 11 NOVEMBER 2011

CaseChat Overview and Summary

In the case of QBE Insurance (Australia) Ltd v Taylor, the dispute revolved around a claim for damages against QBE Insurance by Taylor. The application for summary judgment was brought before the Federal Court of Australia. The key issue was whether the defendant's application for summary judgment should be granted based on the plaintiff's inability to establish a cause of action against the insurance company.

The court examined whether Taylor had a viable claim against QBE Insurance and if the plaintiff could prove all necessary elements of the claim. The court noted that summary judgment could be granted if the defendant demonstrated that there was no reasonable prospect that the plaintiff could succeed in the case. In this instance, the court found that Taylor failed to provide sufficient evidence to substantiate a claim for damages against the insurance company.

Consequently, the court granted the defendant's application for summary judgment, dismissing the plaintiff's claim. The court held that the plaintiff was unable to establish the necessary elements of the claim and that there was no reasonable prospect of success. As a result, the case was concluded in favour of the defendant, and the plaintiff's claim was dismissed. The court did not make any further orders beyond granting summary judgment in favour of QBE Insurance.

Orders