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Tzaidas v Child

Tzaidas v Child

Case [2009] NSWSC 465 29 May 2009

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Reported Decision:
[2009] ALMD 4244
257 ALR 394
27 ACLC 805
74 NSWLR 208
230 FLR 475
72 ACSR 112
72 ACSR 112
257 ALR 394
230 FLR 475

New South Wales

Supreme Court

CITATION: Tzaidas v Child & Ors [2009] NSWSC 465
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12/11/2008; 19/11/2008

JUDGMENT DATE :
29 May 2009

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: 1. The separate questions are answered “No”, “Yes” and “Yes” respectively.
2. Leave is granted to the first and third defendants to file the amended cross-claims dated 16 July 2008.
3. The notices of motion filed on 14 April 2008 by the fourth defendant are dismissed.
I direct the parties to bring in short minutes in each proceeding to reflect those orders. I will hear the parties as to costs.

LEGISLATION CITED: Corporations Act 2001 (Cth)
Insurance Contracts Act 1984 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [2005] NSWCA 19; (2005) 62 NSWLR 148
ASIC v Marlborough Gold Mines Ltd [1993] HCA 13; (1993) 177 CLR 485
Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200
Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
Gett v Tabet [2009] NSWCA 76
National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400
Orica v CGU Insurance [2003] NSWCA 331; (2003) 59 NSWLR 14
Suncorp Metway Insurance Ltd v Clonmel Pty Ltd [2000] QSC 135; (2000) 2 Qd R 94
The Owners-Strata Plan 50530 v Walter Construction Group Ltd (In liquidation) [2007] NSWCA 124
Tzaidas v Child & Ors [2004] NSWCA 252; (2004) 61 NSWLR 18

PARTIES: Con Tzaidas (Plaintiff (20445/01))
Vickie Tzaidas (Plaintiff (20448/01))
George Tzaidas BHT Vickie Tzaidas (Plaintiff (20444/01))
Robert Peter Child (1st Defendant/3rd Cross-Claimant to 3rd Cross-Claim/1st Cross-Defendant to 4th Cross-Claim)
Hurstville Community Co-operative Hospital Limited (2nd Defendant)
Charles M Scarf (3rd Defendant; Cross-Claimant to 1st & 2nd Cross-Claims/2nd Cross-Defendant to 4th Cross-Claim)
CGU Insurance Limited (4th Defendant; Cross-Defendant to 1st & 2nd Cross-Claims/Cross-Defendant to 3rd & 4th Cross-Claims)

FILE NUMBER(S): SC 20444/01; 20448/01; 20445/01

COUNSEL: Mr P H Greenwood SC / Ms K Burke (CGU Insurance Limited)
Mr J E Marshall SC / Mr M J O'Meara (Charles M Scarf/Robert Peter Child)

SOLICITORS: Colin Biggers & Paisley (CGU Insurance Limited)
Blake Dawson (Charles M Scarf/Robert Peter Child)

- 15 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

McCALLUM J

29 MAY 2009

20445/01 GEORGE TZAIDAS BHT VICKIE TZAIDAS v CHILD & ORS

20448/01 VICKIE TZAIDAS v CHILD & ORS

20444/01 CON TZAIDAS v CHILD & ORS

JUDGMENT

1 HER HONOUR: These proceedings raise…

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 Tzaidas v Child

Details

AGLC: Tzaidas v Child [2009] NSWSC 465
Case: [2009] NSWSC 465
Decision Date: 29 May 2009

CaseChat Overview and Summary

The case of Tzaidas v Child and others was heard in the Supreme Court of New South Wales. The plaintiffs, George Tzaidas and his parents, sought compensation for injuries George suffered at birth, allegedly due to negligence by the hospital and two doctors. The hospital was later deregistered, raising questions about the applicability of s 601AG of the Corporations Act 2001 (Cth), which allows recovery from an insurer of a deregistered company if certain conditions are met. The legal issues centred on whether the doctors, as joint tortfeasors, could claim directly from the hospital's insurer under s 601AG before any primary liability was established. The court had to determine whether the hospital had a liability to the doctors immediately before its deregistration and if the insurance policy covered such a liability at that time.

The court concluded that the doctors could potentially recover under s 601AG even if no primary liability had been established against them, as long as it was shown that the hospital was a joint tortfeasor at the time of deregistration. This interpretation aligns with the broader conception of liability in tort law, which includes secondary liabilities such as contribution. Additionally, the court found that the insurance policy likely covered the potential liability of the hospital to the doctors immediately before deregistration. Consequently, the court granted leave for the doctors to amend their cross-claims to include a claim under s 601AG and dismissed the insurer's motions to strike out the existing cross-claims. The court directed the parties to update the minutes of proceedings and scheduled a future hearing to address costs.

Orders