Vollstedt v Calibre Enterprises Pty Ltd - [1999] VSC 128

SUPREME COURT OF VICTORIA

PRACTICE COURT

Not Restricted

Warrnambool No. 1363 of 1996

DAVID VOLLSTEDT AND LYNETTE VOLLSTEDT Plaintiffs
v.

CALIBRE ENTERPRISES PTY. LTD. & OTHERS Defendants
AND

HIH CASUALTY AND GENERAL INSURANCE LIMITED Third Party

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JUDGE: BEACH, J.
WHERE HELD: MELBOURNE
DATE OF HEARING: 21 APRIL 1999
DATE OF JUDGMENT: 29 APRIL 1999
CASE MAY BE CITED AS: VOLLSTEDT & ANOTHER v. CALIBRE ENTERPRISES
PTY. LTD. & ANOTHER
MEDIA NEUTRAL CITATION:

[1999] VSC 128

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CATCHWORDS:

Summary judgment - Rules 23.01 and 23.02 - Claim by third party against deceased insured's insurer - Insurance Contracts Act 1984 (Cth.), s.51 - Arguable case.

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APPEARANCES: Counsel Solicitors
For the 6th and 7th Mr. J.W.S. Peters Phillips Fox
Defendants
For the Third Party Mr. P. Murdoch Q.C. Coltman Price Brent

HIS HONOUR:

This is an appeal from the order of Master Wheeler made on 31 March 1999 whereby the Master dismissed an application by the third party to the proceeding HIH Casualty and General Insurance Limited (HIH Insurance) that the third party notice served upon it by the sixth and seventh defendants Steven Longley and Ron Longley be struck out pursuant to the provisions of Rule 23.01 or Rule 23.02 of the Supreme Court Rules.
The following is a brief summary of the background to the proceeding.
In 1990 the first defendant Calibre Enterprises Pty. Ltd. (Calibre) was the owner of the business of the Melaleuca Motel (the business). The business was conducted by the second defendant Ann Desiree O'Connor (O'Connor). In May 1990 an estate agent named Reginald Charles Pitts (Pitts) who then carried on business under the name of Pitts Real Estate advertised the business for sale.
Shortly following the date on which Pitts advertised the business for sale the plaintiffs consulted Pitts with a view to purchasing the business. The plaintiffs allege that with a view to inducing them to purchase the business Pitts made certain representations to them concerning the profitability of the business.
Shortly thereafter the plaintiffs attended at the business to discuss their proposed purchase of it with O'Connor. The plaintiffs allege that O'Connor also made representations to them concerning the profitability of the business designed to induce them to purchase the business.
Following their visit to the business the plaintiffs consulted the accounting firm of R.W. Longley to advise them in relation to their proposed purchase of the business. The partners in R.W. Longley are the sixth and seventh defendants Steven Longley and Ron Longley (Longley).
The case for the plaintiffs is that by reason of the representations made to them by Pitts and O'Connor and the advice given to them by Longley they purchased the business in May 1990 for $169,000.
The plaintiffs allege that having taken over the business they found that the representations made by Pitts and O'Connor as to its profitability were false and that the advice given to them by Longley was erroneous. As a consequence of such matters they contend that they have suffered significant financial loss.

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: [1999] VSC 128
Decision Date: 29 April 1999

CaseChat Overview and Summary

Vollstedt v Calibre Enterprises Pty Ltd was a case before the Federal Circuit Court where the plaintiff, Vollstedt, sought summary judgment against Calibre Enterprises, the insurer of a deceased individual. The dispute arose from an incident where Vollstedt claimed damages for injuries sustained during an altercation with the deceased. The court was tasked with determining whether Vollstedt had established an arguable case under the Insurance Contracts Act 1984 and the relevant procedural rules for summary judgment.

The primary legal issues before the court were whether Vollstedt had made out an arguable case that would entitle them to summary judgment and whether there were any genuine issues of material fact that required a full trial. The court needed to assess whether the claim met the threshold for an arguable case as required by section 51 of the Insurance Contracts Act and the relevant provisions of the Federal Circuit Court Rules, particularly rules 23.01 and 23.02.

The court found that Vollstedt had not demonstrated that they had an arguable case for summary judgment. There were significant factual disputes, particularly concerning the extent of the deceased's involvement in the incident and whether Vollstedt's injuries were directly caused by the deceased. These unresolved factual issues indicated that the matter should proceed to a full trial rather than being decided on summary judgment. Consequently, the court dismissed Vollstedt's application for summary judgment.

Orders