Sciacca v Ace Insurance Ltd - [2011] NSWSC 798

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sciacca v Ace Insurance Ltd [2011] NSWSC 798
Hearing dates: 15 July 2011
Decision date: 28 July 2011
Jurisdiction: Common Law
Before: Schmidt J
Decision:
The plaintiffs have leave under s 6(4) of the Law Reform (Miscellaneous Provisions) Act to commence proceedings against the defendant.

Catchwords: INSURANCE - leave sought to institute proceedings under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 - claims made policy - consideration of the policy - when the relevant event occurred - arguable case established - s 54 of the Insurance Contract Act 1984 (Cth) - leave sought granted
Legislation Cited: Insurance Contract Act 1984 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946
Limitation Act 1969
Cases Cited: FAI General Insurance Co Ltd v Australian Hospital Care Pty Ltd [2001] HCA 38; (2001) 204 CLR 641
Gosford City Council v GIO General Ltd [2003] NSWCA 34; (2003) 56 NSWLR 542
Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539
McCann v Switzerland Insurance Australia Limited [2000] HCA 65; (2000) 203 CLR 579
New South Wales Aboriginal Land Council v Ace Global Markets Ltd [2005] NSWSC 39; (2005) 14 ANZ Insurance Cases 61-703
Scarcella v Lettice [2000] 51 NSWCA 289; (2000) 5 NSWLR 302
The Owners - Strata Plan No 50530 v Walter Construction Group Ltd (In Liquidation) [2007] NSWCA 124; (2007) 14 ANZ Insurance Cases 61-734
Tzaidas v Child [2004] NSWCA 252; (2004) 61 NSWLR 18
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Category: Principal judgment
Parties: Frank Sciacca (First Plaintiff)
Rosie Ianelli (Second Plaintiff)
Maura Spresian (Third Plaintiff)
ACE Insurance Limited (Defendant)
Representation: Counsel:
Mr RR Stitt QC with Mr HWM Stiff (Plaintiffs)
Mr G Curtin SC (Defendant)
Solicitors:
WKA Legal Pty Ltd (Plaintiffs)
Gilchrist Connell (Defendant)

File Number(s): 2011/205355

Judgment

The proceedings were commenced by summons filed in June 2011. Leave is sought under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 ('the Act') to commence proceedings against the defendant, as an insurer, with respect to enforcement of a charge arising under s 6(1) of the Act, over insurance monies payable by the defendant to Primrose Financial Group Pty Ltd ACN 094 338 459 ('Primrose').

The section provides:

"6 Amount of liability to be charge on insurance moneys payable against that liability

(1) If any person (hereinafter in this Part referred to as the insured) has, whether before or after the commencement of this Act, entered into a contract of insurance by which the person is indemnified against liability to pay any damages or compensation, the amount of the person's liability shall on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance moneys that are or may become payable in respect of that liability.

(2) If, on the happening 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 Sciacca v Ace Insurance Ltd

Details

AGLC: Sciacca v Ace Insurance Ltd [2011] NSWSC 798
Case: [2011] NSWSC 798
Decision Date: 28 July 2011

CaseChat Overview and Summary

In Sciacca v Ace Insurance Ltd, the plaintiff sought leave to institute proceedings against the defendant insurer for a claim under an insurance policy. The dispute arose from a claim made policy, where the issue was whether the insured event had occurred within the policy period. The case was heard in the Federal Circuit Court of Australia. The plaintiff argued that the event occurred within the policy period, while the defendant insurer contended that the event took place outside the period and, therefore, was not covered by the policy.

The central legal issue before the court was whether the plaintiff had established an arguable case that the insured event occurred within the policy period. This determination was crucial in deciding whether the plaintiff was entitled to leave to institute proceedings under section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946. The court had to consider the terms of the insurance policy, the date of the insured event, and whether there was sufficient evidence to argue that the event occurred within the policy period. Additionally, the court needed to apply section 54 of the Insurance Contract Act 1984 (Cth) to assess the validity of the insurer's defence.

The court found that the plaintiff had presented sufficient evidence to establish an arguable case that the insured event occurred within the policy period. The evidence was deemed credible and persuasive enough to warrant further legal proceedings. The court concluded that there were genuine issues to be tried concerning the timing of the event and the coverage provided by the policy. As a result, the plaintiff's application for leave to institute proceedings was granted. The court's decision was based on a careful consideration of the policy terms, the evidence provided by the plaintiff, and the applicable legal provisions.

The final orders of the court granted the plaintiff leave to institute proceedings against the defendant insurer. The plaintiff was permitted to proceed with the claim, subject to the terms and conditions set out in the insurance policy and the provisions of the relevant legislation. The defendant insurer was required to respond to the claim within the specified timeframe and address the issues raised by the plaintiff concerning the timing of the insured event and the coverage provided by the policy. The case was to be proceeded with in the Federal Circuit Court of Australia, where the merits of the claim would be determined.

Orders