Voitenko v Zurich Australian Insurance Ltd

Voitenko (the applicant) sought leave to appeal from a decision of a single judge of the Supreme Court of New South Wales that granted Zurich Australian Insurance Ltd (the respondent insurer) leave to amend its defence. The underlying dispute concerned a claim for property damage caused by fire. The insurer sought to amend its defence to plead arson, an application made some time after the initial defence had been filed.

The primary legal issues before the Court of Appeal were whether the primary judge erred in failing to consider the presumptive prejudice to the applicant that arises from a belated amendment to a defence, and whether the primary judge erred in their approach to the insurer's explanation for the delay in seeking the amendment. The applicant argued that the primary judge should have given greater weight to the prejudice caused by the late introduction of an arson defence, particularly in the context of the Civil Procedure Act.

Meagher and McCallum JJA dismissed the summons for leave to appeal. Their Honours found that the primary judge had adequately considered the relevant factors, including the explanation for the delay and the potential prejudice. The Court held that the primary judge was entitled to conclude that the insurer had provided a sufficient explanation for the delay and that the prejudice to the applicant could be managed through appropriate directions and orders. The Court did not consider that the primary judge had failed to have regard to presumptive prejudice, but rather that the judge had weighed this against other relevant considerations.

The summons for leave to appeal was dismissed with costs.