The Christian and Missionary Alliance of Australasia Property Trust v Alameddine - [2014] NSWLC 17

Local Court

New South Wales

Medium Neutral Citation: The Christian and Missionary Alliance of Australasia Property Trust v Alameddine [2014] NSWLC 17
Hearing dates: 28/08/2014
Decision date: 02 October 2014
Jurisdiction: Civil
Before: Magistrate C O'Brien
Decision:
Orders:
i. Pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), grant leave to the plaintiff to proceed against the third defendant.
ii. That Insurance Australia Limited t/as NRMA Australia (ACN 000 016 722) be joined as the third defendant.
iii. Grant leave to the plaintiff to file an Amended Statement of Claim in the form served on the solicitors for the third defendant on 10 July 2014, such claim to be filed in the Registry within 14 days.
iv. That the default judgment entered against the second defendant on 27 August 2013 be set aside.
v. That costs of the motion are to be costs in the cause.

Catchwords: CIVIL PROCEEDINGS - Notice of Motion - joinder of parties - joinder of insurers - s 51, Insurance Contracts Act - grant of leave under s 6(4), Law Reform (Miscellaneous Provisions) Act 1946 - legislative purpose -principles relevant to the granting of leave - whether there is a viable defendant
Legislation Cited: Civil Procedure Act 2005
Insurance Contracts Act 1984 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946
Road Transport Act 2013
Uniform Civil Procedure Rules 2005
Cases Cited: Bailey v NSW Medical Defence Union Ltd (1995) 184 CLR 399
Bede Polding College v Limit (No. 3) Ltd [2008] NSWSC 887
Energize Fitness Pty Ltd v Vero Insurance [2012] NSWCA 213
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Kinzett v McCourt [1999] NSWCA 7; (1999) 46 NSWLR 32
National Mutual Fire Insurance Company Limited v Commonwealth [1981] 1 NSWLR 400
New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469
Oswald v Bailey (1987) 11 NSWLR 715
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1991) ASC 56-033
Tzaidas v Child [2004] NSWCA 252
Zhang v Minox Securities Pty Ltd [2008] NSWSC 689
Texts Cited: C McCarthy, "Third Party Access to Insurance policies and Joinder of Insurers" (1999) 11 Insurance Law Journal 46
Category: Interlocutory applications
Parties: The Christian and Missionary Alliance of Australasia Property Trust (ACN 46 000 786 023) (applicant/ plaintiff)
Auday Alameddine (first respondent/ first defendant)
Xinlia Ma (aka Xinli Ma) (second respondent/ second defendant)
Insurance Australia Limited (trading as NRMA) (third respondent/ third defendant)
Representation: Mr Alexander for the plaintiff/ applicant
Mr Fernie for the first defendant/ first respondent
Mr Carolan for the third defendant/ third respondent
No appearance for second defendant/ second respondent

File Number(s): 2013/145466
Publication restriction: Nil

Judgment

Background

On the 14 May 2011, the wall of the plaintiff's property (being the Chinese Alliance Church at 51 Hawkesbury Road, Westmead) was damaged when it was stuck by a motor vehicle. That vehicle was being driven by the first defendant Auday Alameddine ("Alameddine"), and the collision allegedly occurred after Alameddine's vehicle had swerved to…

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

AGLC: The Christian and Missionary Alliance of Australasia Property Trust v Alameddine [2014] NSWLC 17
Case: [2014] NSWLC 17
Decision Date: 02 October 2014

CaseChat Overview and Summary

The Christian and Missionary Alliance of Australasia Property Trust initiated proceedings against Mr Alameddine and sought to join additional parties, including insurers. The dispute was heard in the Supreme Court of New South Wales. The plaintiff sought to join a third party, Insurance Australia Limited trading as NRMA Australia, as a defendant in the action, and to amend the statement of claim to include claims against this new party. Additionally, the plaintiff requested that a default judgment entered against the second defendant be set aside.

The court was required to decide whether to grant leave under section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to the plaintiff to proceed against the third defendant and to join Insurance Australia Limited as a defendant. The court also needed to determine whether it was appropriate to set aside the default judgment entered against the second defendant and to allow an amended statement of claim to be filed.

The court found that the legislative purpose of section 6(4) of the Law Reform (Miscellaneous Provisions) Act was to allow for the joinder of parties in civil proceedings where it was considered just and convenient to do so. The court considered that it was appropriate to grant leave for the plaintiff to proceed against the third defendant, and to join Insurance Australia Limited as the third defendant, as it was in the interests of justice to do so. The court also found that it was appropriate to set aside the default judgment against the second defendant and to allow an amended statement of claim to be filed, as the plaintiff had demonstrated that there was a viable defendant in the action.

The court granted leave for the plaintiff to proceed against the third defendant and to join Insurance Australia Limited as the third defendant. The court also set aside the default judgment against the second defendant and allowed the plaintiff to file an amended statement of claim. The costs of the motion were to be costs in the cause.

Orders

Orders of the court

Orders:

i. Pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), grant leave to the plaintiff to proceed against the third defendant.

ii. That Insurance Australia Limited t/as NRMA Australia (ACN 000 016 722) be joined as the third defendant.

iii. Grant leave to the plaintiff to file an Amended Statement of Claim in the form served on the solicitors for the third defendant on 10 July 2014, such claim to be filed in the Registry within 14 days.

iv. That the default judgment entered against the second defendant on 27 August 2013 be set aside.

v. That costs of the motion are to be costs in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	The Christian and Missionary Alliance of Australasia Property Trust v Alameddine [2014] NSWLC 17
Hearing dates:	28/08/2014
Decision date:	02 October 2014
Jurisdiction:	Civil
Before:	Magistrate C O'Brien
Decision:	Orders: i. Pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), grant leave to the plaintiff to proceed against the third defendant. ii. That Insurance Australia Limited t/as NRMA Australia (ACN 000 016 722) be joined as the third defendant. iii. Grant leave to the plaintiff to file an Amended Statement of Claim in the form served on the solicitors for the third defendant on 10 July 2014, such claim to be filed in the Registry within 14 days. iv. That the default judgment entered against the second defendant on 27 August 2013 be set aside. v. That costs of the motion are to be costs in the cause.
Catchwords:	CIVIL PROCEEDINGS - Notice of Motion - joinder of parties - joinder of insurers - s 51, Insurance Contracts Act - grant of leave under s 6(4), Law Reform (Miscellaneous Provisions) Act 1946 - legislative purpose -principles relevant to the granting of leave - whether there is a viable defendant
Legislation Cited:	Civil Procedure Act 2005 Insurance Contracts Act 1984 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 Road Transport Act 2013 Uniform Civil Procedure Rules 2005
Cases Cited:	Bailey v NSW Medical Defence Union Ltd (1995) 184 CLR 399 Bede Polding College v Limit (No. 3) Ltd [2008] NSWSC 887 Energize Fitness Pty Ltd v Vero Insurance [2012] NSWCA 213 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Kinzett v McCourt [1999] NSWCA 7; (1999) 46 NSWLR 32 National Mutual Fire Insurance Company Limited v Commonwealth [1981] 1 NSWLR 400 New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469 Oswald v Bailey (1987) 11 NSWLR 715 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1991) ASC 56-033 Tzaidas v Child [2004] NSWCA 252 Zhang v Minox Securities Pty Ltd [2008] NSWSC 689
Texts Cited:	C McCarthy, "Third Party Access to Insurance policies and Joinder of Insurers" (1999) 11 Insurance Law Journal 46
Category:	Interlocutory applications
Parties:	The Christian and Missionary Alliance of Australasia Property Trust (ACN 46 000 786 023) (applicant/ plaintiff) Auday Alameddine (first respondent/ first defendant) Xinlia Ma (aka Xinli Ma) (second respondent/ second defendant) Insurance Australia Limited (trading as NRMA) (third respondent/ third defendant)
Representation:	Mr Alexander for the plaintiff/ applicant Mr Fernie for the first defendant/ first respondent Mr Carolan for the third defendant/ third respondent No appearance for second defendant/ second respondent
File Number(s):	2013/145466
Publication restriction:	Nil