Roy Atkin Johnstone v Broad Group Holdings Pty Limited

Roy Atkin Johnstone sought to join Wesfarmers General Insurance Limited as a defendant in the proceedings after the named defendant, Broad Group Holdings Pty Limited, was deregistered. The plaintiff's action arose from a motor vehicle accident and sought damages against the deregistered defendant. The plaintiff applied for leave to amend the statement of claim to substitute Wesfarmers General Insurance Limited as the defendant, as they were the insurer of the deregistered defendant at the time of the accident. The deregistered defendant's liquidator opposed the application on the basis that the plaintiff had not established that an insurance policy was in place at the relevant time, and that the cause of action against Wesfarmers was statute-barred. The court had to determine whether the plaintiff had established the existence of the insurance policy and whether the cause of action against Wesfarmers was statute-barred.

The court found that the plaintiff had established that an insurance policy was in place at the relevant time and that the cause of action against Wesfarmers was not statute-barred. The court held that the onus was on the plaintiff to establish that the insurance policy was in place, and that the plaintiff had discharged this onus. The court also held that the cause of action arose under section 601AG of the Corporations Act 2001, and that the limitation period for actions under that section was three years from the date of registration of the deregistered defendant. The court found that the plaintiff's cause of action had not been statute-barred as it was commenced within the limitation period.

The court granted leave for the plaintiff to join Wesfarmers General Insurance Limited as a defendant and to file an amended statement of claim. The court also ordered that Wesfarmers was to pay the costs of the motion of the plaintiff and of the second defendant. The affidavits in support of the motion were returned.