Sedgwick Australia Pty Ltd v Jloc Super Pty Ltd

In the matter of Sedgwick Australia Pty Ltd v Jloc Super Pty Ltd, the Court of Appeal reviewed a decision made by the primary judge in a dispute concerning the liability of a loss adjuster and a builder in relation to damage to a building. The dispute involved the original trustees of a superannuation trust fund who held property on which the building was constructed. Following a storm, the insurer appointed a loss adjuster to assess the damage and a builder to carry out the necessary rectification works. After a new trustee was appointed, another storm caused further damage, and the new trustee sought to recover the total costs of the repair and ancillary works, alleging the builder's negligence in the initial rectification works. The new trustee commenced proceedings against the builder and the loss adjuster for breach of a duty of care owed in tort. The loss adjuster sought to strike out certain paragraphs of the new trustee's statement of claim, which the primary judge declined to do. The loss adjuster appealed the primary judge's decision, arguing that the new trustee was not entitled to sue regarding conduct prior to its appointment and that the primary judge had incorrectly interpreted the Trusts Act. The Court of Appeal needed to determine whether the primary judge had erred in not striking out the alleged duty of care in tort and whether the primary judge had erred in failing to strike out parts of the pleadings.

The Court of Appeal found that the primary judge had not erred in declining to strike out the alleged duty of care in tort. The Court noted that the primary judge's view that the case was not sufficiently clear to warrant striking out or summarily dismissing the claim was consistent with established legal principles. The factual uncertainties surrounding the relationships and knowledge of the various parties, including the original trustees, the insurer, the loss adjuster, and the builder, justified the primary judge's decision. The Court further held that the loss adjuster had not demonstrated that the order would result in a substantial injustice. Regarding the adequacy of the plea of the loss adjuster's appointment, the Court found that the primary judge had not erred in rejecting the complaints concerning the adequacy of the plea. The Court noted that the new trustee's appointment was valid under the Trusts Act, and the new trustee had the same powers, authorities, and discretions as if it had been originally appointed as the trustee. The Court concluded that the primary judge's decision did not result in any substantial injustice to the loss adjuster.

The Court of Appeal allowed the appeal, set aside certain orders made by the primary judge, and struck out specific paragraphs of the new trustee's statement of claim with leave to replead. The Court directed the parties to file written submissions on the costs orders within seven days, limited to four pages.