Vero Insurance Limited v Williams - [2010] NSWSC 858

CITATION: Vero Insurance Limited v Williams and Anor [2010] NSWSC 858

HEARING DATE(S): 2 August 2010

JUDGMENT DATE :
13 August 2010

JUDGMENT OF: Schmidt J

DECISION: Leave to appeal refused.
Plaintiff to bear costs, as agreed or assessed.

CATCHWORDS: APPEAL - leave to appeal and appeal orders made from s 20 of the Service and Execution of Process Act 1992 (Cth) staying proceedings in Local Court - Guarantee and Indemnity - whether Supreme Court of Queensland appropriate Court to determine matters raised in Local Court proceedings - whether Queensland proceedings and Local Court proceedings separate or distinct - whether there was an error in exercising the discretion - whether there was failure to take into account or giving sufficient weight to relevant matters - whether there were material errors of fact - whether irrelevant matters were taken into account - no errors shown - leave to appeal refused - costs

LEGISLATION CITED: Local Courts Act 2007
Service and Execution of Process Act 1992 (Cth)
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: House v King [1936] HCA 40; (1936) 55 CLR 499
Julia Farr Services Inc v Hayes [2003] NSWCA 37; (2003) 25 NSWCCR 138
Meriton Apartments Pty Ltd v GNC Assets Pty Ltd (2003)1 DCLR (NSW) 207
Queensland Rail v Irving & Others (2004) 1 DDCR 578
Reliance Developments (NSW) Pty Limited v Lumley General Insurance Limited [2008] NSWCA 172
Wood Hall Ltd v Pipeline Authority [1979] HCA 21; (1979) 141 CLR 443

PARTIES: Vero Insurance Limited - Plaintiff
Kevan Charles Williams - First Defendant
Marlene Rae Williams - Second Defendant

FILE NUMBER(S): SC 2010/129990

COUNSEL: Mr RA Parsons, counsel
Mr AC Casselden, counsel

SOLICITORS: Gadens Lawyers - Plaintiff
Slater & Gordon Lawyers - Defendants

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 5957 of 2009

LOWER COURT JUDICIAL OFFICER : Magistrate O'Shane

LOWER COURT DATE OF DECISION: 27 April 2010

- 13 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SCHMIDT J

FRIDAY, 13 AUGUST 2010

2010/129990 VERO INSURANCE LIMITED v KEVAN CHARLES WILLIAMS & ANOR

JUDGMENT

1 HER HONOUR: By summons filed in May 2010 pursuant to s 40 of the Local Courts Act 2007, the plaintiff sought leave to appeal and appeals from a decision given by Magistrate O’Shane in April 2010. Her Honour made orders under s 20 of the Service and Execution of Process Act 1992 (Cth) staying the proceedings, having come to the view that the Supreme Court of Queensland was the appropriate court to determine the matters in issue between the parties.

2 The proceedings had been commenced in the Local Court in 2009 by a statement of claim. They concerned an indemnity given by the defendants in relation to a ‘Deposit Power Guarantee’ issued by the plaintiff in October 2006. Thereby, it was claimed, the first and second defendants irrevocably indemnified the plaintiff for monies payable by the plaintiff under the guarantee in respect of the payment of a…

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

Case: [2010] NSWSC 858
Decision Date: 13 August 2010

CaseChat Overview and Summary

Vero Insurance Limited, an insurance company, filed an appeal against the decision of the Local Court to deny their application to stay proceedings against Williams, a policyholder, in relation to a guarantee and indemnity matter. The appeal was brought to the Supreme Court of Queensland. The appeal sought to stay the proceedings in the Local Court and transfer them to the Supreme Court, asserting that the Supreme Court was the appropriate forum to address the matters raised in the Local Court proceedings.

The court had to determine whether the Supreme Court of Queensland was the appropriate court to resolve the issues raised in the Local Court proceedings. It also had to ascertain whether the Queensland proceedings and the Local Court proceedings were separate and distinct matters. Furthermore, the court needed to assess whether there was an error in the exercise of the court's discretion, any failure to consider or give adequate weight to relevant matters, any material errors of fact, or if irrelevant matters were considered.

The court examined the application and found that there were no errors in the exercise of discretion. It determined that all relevant matters had been considered and given appropriate weight. There were no material errors of fact, and no irrelevant matters were taken into account. Consequently, the court dismissed the appeal and refused leave to appeal. The court also ordered that costs be paid by Vero Insurance Limited to Williams.

Orders