Re: Bambora P/L v Sun Alliance Aust Ltd

In the case of Bambora Pty Ltd (in liquidation) versus Sun Alliance Australia Limited, the applicant sought to amend the statement of claim in an ongoing action. The claim was initially filed in 1990, following two separate incidents of damage to a night-club in Rockhampton. The first incident occurred on 16 October 1989, when fire damage was caused under suspicious circumstances, and the second incident occurred on 10 November 1989, when an incendiary device resulted in further damage to the premises. The applicant made separate claims under an insurance policy with the respondent for both incidents, but the writ and the statement of claim initially only referred to the second incident, omitting the first incident.

The primary legal issue the court needed to address was whether the proposed amendment to the statement of claim could be allowed under Supreme Court Rules Order 32. The applicant argued that the amendment did not change the cause of action but only altered the particulars of the claim, which was always a claim for damages for breach of a policy indemnity. Conversely, the respondent contended that the statement of claim had superseded the broader claim on the writ, and the proposed amendment introduced a new cause of action for indemnity for the loss and damage caused by the fire on 16 October 1989. The respondent also argued that the two incidents were separate and distinct, and therefore the conditions prescribed in Order 32 had not been satisfied.

The court held that the causes of action did not arise out of the same facts or substantially the same facts, and therefore Order 32 r 1 could not be invoked to allow the amendment out of time. The court found that the plaintiff had conducted the action on the basis that the incident in respect of which it was seeking to enforce the insurance contract was the explosion and fire on 10 November 1989, and there were unambiguous indications in the pleadings that the defendant did not understand the action to be concerned with the earlier incident. The statement of claim had consistently restricted the ambit of the more general claim endorsed on the writ and had superseded that claim. As a result, the summons was dismissed with costs to be taxed.