Ritchie v Advanced Plumbing and Drains Pty Ltd - [2019] NSWSC 1028

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ritchie v Advanced Plumbing and Drains Pty Ltd [2019] NSWSC 1028
Hearing dates: 20 August 2018
Date of orders: 16 August 2019
Decision date: 16 August 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Grant leave to the plaintiff to proceed against Insurance Australia Limited trading as CGU Insurance pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW);
(2) Grant leave to the plaintiff to file and serve an Amended Statement of Claim to include a claim for relief against Insurance Australia Limited Trading as CGU Insurance under s 4 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).
Catchwords:
CIVIL PROCEDURE – Leave to proceed against insurer – defendant in liquidation – third party claims against insurers – arguable case that policy responds to liability – construction of insurance contracts – whether insurer has validly disclaimed liability – held arguable case against defendant – held arguable case that insurance policy responds to liability – held insurer has not discharged onus disclaiming liability – held leave to proceed against insurer granted.
CONTRACT LAW – Interpretation of insurance contracts – exclusion and limitation clauses – construing ambiguous words – whether general expression “spark producing equipment” should be read down – held general expressions to be read in context – held expression confined to include only specified equipment – held general expression to be read down.
Legislation Cited: Civil Liability Act 2002 (NSW), s 5B
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), s 5
Corporations Act 2001 (Cth), s 500
Cases Cited: Andar Transport Pty Ltd v Brambles Limited (2004) 217 CLR 424; [2004] HCA 28
Australian Aviation Underwriting Pty Ltd v Henry (1988) 12 NSWLR 121
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA HCA 13
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; [1986] HCA 82
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Pty Ltd (2014) 251 CLR 640; [2014] HCA 7
General Steel Industries Inc. v Commissioner for
Railways (1964) 112 CLR 125; [1964] HCA 69
Lend Lease Real Estate Investments Limited v GPT RE Limited [2006] NSWCA 207
McCann v Switzerland Insurance Australia Limited & Ors (2000) 203 CLR 579; [2000] HCA 65
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd and Anor (2015) 256 CLR 104; [2015] HCA 37
Murphy, McCarthy & Associates Pty Limited v Zurich Australian Insurance Limited [2018] NSWSC 627
Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 162; [2006] HCA 19
Watts v Perry [1971] 1 NSWLR 73
Wickstead v Browne (1992) 30 NSWLR 1
Zaki v…

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: [2019] NSWSC 1028
Decision Date: 16 August 2019

CaseChat Overview and Summary

Ritchie sought leave to add Advanced Plumbing and Drains Pty Ltd's insurer as a party to proceedings against the company, which was in liquidation. Ritchie claimed the insurer was liable under a public liability insurance policy, which covered claims arising from damage to property caused by "spark producing equipment." Ritchie alleged that Advanced Plumbing and Drains Pty Ltd's negligence caused damage to his property, and the damage was caused by spark producing equipment. The court needed to determine whether Ritchie had an arguable case against the insurer, whether the insurance policy covered the damage, and whether the insurer had successfully disclaimed liability.

The court found that Ritchie had an arguable case against Advanced Plumbing and Drains Pty Ltd based on the evidence presented. The court also found that the insurance policy covered the damage caused by spark producing equipment, as the term was ambiguous and should be read down to include only specified equipment. The insurer had not discharged the onus of proving that the exclusion clause applied to exclude liability. The court granted leave to Ritchie to add the insurer as a party to the proceedings.

The court held that the expression "spark producing equipment" should be read in context and confined to include only specified equipment. The court also held that the insurer had not discharged the onus of proving that the exclusion clause applied to exclude liability. The court found that the insurance policy responded to Ritchie's claim, and there was an arguable case that the insurer was liable. The court granted leave to Ritchie to add the insurer as a party to the proceedings, and the matter proceeded to trial.

Orders