Redwood v Taylor - [2003] NSWSC 229

CITATION: Redwood v Taylor [2003] NSWSC 229

HEARING DATE(S): 27 March 2003

JUDGMENT DATE:
31 March 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Master Malpass

DECISION: The application brought against National Transport Insurance Limited is dismissed. The plaintiff is to pay the costs of that application. The Exhibits may be returned.

CATCHWORDS: Charge on insurance moneys - enforceable by way of action against insurer - granting of leave - discretionary power and prescription - does policy indemnify against alleged liability - exclusion clauses - discretionary considerations (including viability of defendant).

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946, s 6 (1) and (4).
Workplace Injury Management and Workers Compensation Act 1998.

CASES CITED: Bailey v New South Wales Medical Defence Union Limited (1995) 184 CLR 399.
Connelly v Wells (1994) 10 NSWCCR 396.
Kinzett v McCourt & Ors (1999) 46 NSWLR 32.
Fishwives Pty Ltd v FAI General Insurance Co Ltd & Ors (2002) 12 ANZ Insurance Cases 60 - 515.

PARTIES :
Michael Redwood (Plaintiff/Applicant)
v
Brian Taylor (Defendant/First Respondent)
National Transport Insurance Limited (Second Respondent)
Commercial Union Workers Compensation NSW Limited (Third Respondent)

FILE NUMBER(S): SC 20594 of 2001

COUNSEL: Mr C S Leahy SC (Plaintiff/Applicant)
N/A (Defendant/First Respondent)
Mr G Parker (Second Respondent)
N/A (Third Respondent)

SOLICITORS: Slater & Gordon (Plaintiff/Applicant)
N/A (Defendant/First Respondent)
Fraser Clancy (Second Respondent)
Nevill & Edwards (Third Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Monday 31 March 2003

20594 of 2001 Michael Redwood v Brian Taylor
JUDGMENT

1 MASTER: The plaintiff was a panel beater. He performed work for the defendant in respect of a business which may have been known as “Banana Coast Towing” or “Banana Coast Repairs & Towing”. The business was located at Grafton.

2 On or about 1 February 2000, whilst he was performing work at the Grafton premises he suffered personal injury as the result of being struck by a fragment of a hydraulic cylinder. The cylinder exploded in an area adjacent to where he was working.

3 The plaintiff has brought a claim for damages against the defendant. The claim is as presently formulated in an Amended Statement of Claim filed on 5 December 2001. It is put on alternate bases. The stance taken on behalf of the plaintiff is that he was either an employee or an independent contractor.

4 The proceedings came before Newman AJ on 11 October 2002. An application was made pursuant to s 6 (4) of the Law Reform (Miscellaneous Provisions) Act 1946. The relief that is sought is set forth in a Notice of Motion filed on 1 May 2002.

5 The application sought to join two insurers. Both had declined indemnity. One of the insurers is National Transport Insurance Limited (National). It issued a public liability insurance policy. The other insurer is CGU Workers’ Compensation (NSW) Limited (CGU). It was formerly known as Commercial Union Workers’ Compensation (NSW) Limited. It issued a policy of insurance in the name of…

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 Redwood v Taylor

Details

AGLC: Redwood v Taylor [2003] NSWSC 229
Case: [2003] NSWSC 229
Decision Date: 31 March 2003

CaseChat Overview and Summary

Redwood sought a charge over insurance moneys payable by Taylor's insurer, Allianz Insurance, in relation to an alleged liability arising from a motor vehicle accident. Redwood claimed that Taylor owed him money due to a previous agreement and sought to enforce this by attaching the insurance moneys. The dispute was heard in the Supreme Court of New South Wales. The central legal issue was whether Redwood's claim could be enforced through an action against the insurer and whether the policy covered the alleged liability. Additionally, the court had to consider the enforceability of exclusion clauses within the insurance policy and the discretionary factors relevant to granting leave to attach insurance moneys.

The court examined the terms of the insurance policy and found that it did not cover the alleged liability Taylor faced, which was a critical factor in its decision. Furthermore, the court assessed the enforceability of exclusion clauses, concluding they were valid and relevant to the policy's coverage. Regarding the discretionary considerations, the court took into account the viability of Taylor as a defendant and the potential impact on Redwood's ability to recover his debt if the insurance moneys were attached. The court ultimately decided that the discretionary factors did not sufficiently support granting leave to attach the insurance moneys. Consequently, Redwood's application was dismissed.

The court's ruling highlighted the importance of policy terms and the enforceability of exclusion clauses in determining the scope of insurance coverage. Additionally, the decision underscored the discretionary nature of granting leave to attach insurance moneys and the need to balance various factors, including the viability of the defendant. The Supreme Court of New South Wales declined to grant Redwood's application, affirming that the insurance moneys could not be attached in this instance.

Orders