Wade v Muir - [2009] NSWSC 723

CITATION: Wade v Muir [2009] NSWSC 723

HEARING DATE(S): 5 June and 10 July 2009

JUDGMENT DATE :
29 July 2009

JUDGMENT OF: Harrison J

DECISION: The plaintiff's notice of motion is dismissed. The parties to bring in short minutes of order giving effect to my conclusions.

CATCHWORDS: INSURANCE – claim by plaintiff against her former solicitor alleging negligent conduct of a conveyancing transaction - application to join insurer pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - circumstances in which plaintiff can proceed directly against insurer of solicitor alleged to be liable to pay her damages - claims-made policy - whether event giving rise to the liability to the plaintiff occurred before entry into the contract of insurance

LEGISLATION CITED: Insurance Contracts Act 1984
Law Reform (Miscellaneous Provisions) Act 1946

CATEGORY: Procedural and other rulings

CASES CITED: Bailey v New South Wales Medical Defence Union Limited [1995] HCA 28; (1995) 184 CLR 399
The Owners - Strata Plan No 50530 v Walter Construction Group Limited (In Liquidation) & Ors [2007] NSWCA 124; (2007) 14 ANZ Insurance Cases 61-734

PARTIES: Dawn Florence Wade (Plaintiff)
Brian Muir (First Defendant)
Donald Wakeling (Second Defendant)

FILE NUMBER(S): SC 20026/2008

COUNSEL: G C Jones (Plaintiff)
G Curtin (LawCover)

SOLICITORS: Oliveri Lawyers (Plaintiff)
HWL Ebsworth Lawyers (LawCover)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

HARRISON J

29 July 2009

20026/2009 Dawn Florence Wade v Brian Muir and Donald Wakeling
JUDGMENT

1 HIS HONOUR: By her notice of motion filed 16 March 2009 the plaintiff seeks a grant of leave pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 ("the Act") to join LawCover Insurance Pty Ltd ("LawCover") as a defendant in the proceedings.

Nature of the proceedings

2 The first defendant was a solicitor. He acted for a company, of which the plaintiff was a director, with respect to a conveyancing transaction in 2001 and 2002. This concerned the purchase by the company of a property in Buckett's Way, Gloucester. Completion of the company's purchase of the property occurred on 8 February 2002. The plaintiff alleges that the first defendant was negligent in a number of respects in the way that he handled the transaction for the company, as a result of which it suffered loss. On 8 February 2003 the company assigned its cause of action against the first defendant to the plaintiff. Her statement of claim commencing these proceedings was filed on 6 February 2008.

The notice of motion

3 The proceedings came before me in the professional negligence list. LawCover opposed the relief sought upon the grounds that the facts of this case provided no basis for the grant of leave to join it as a defendant. It relied upon an affidavit of Kaveetha Kumar sworn 28 April 2009, part of which was read without objection as follows:

"12. Brian Muir's practising certificate was suspended on 18 January 2007. Annexed and marked "H" is 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: [2009] NSWSC 723
Decision Date: 29 July 2009

CaseChat Overview and Summary

In the case of Wade v Muir, the plaintiff, Ms. Wade, brought a claim against her former solicitor, Mr. Muir, for alleged negligence in a conveyancing transaction. She sought to join her former solicitor's insurer as a party to the proceedings under section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The dispute centred on whether Ms. Wade could directly pursue her former solicitor's insurer for damages due to the solicitor's alleged negligence, given the existence of a claims-made insurance policy. The critical legal issue was whether the event giving rise to Ms. Wade's liability occurred before the entry into the insurance contract.

The court examined the terms of the claims-made insurance policy and the timeline of events to determine the validity of Ms. Wade's claim against the insurer. It was established that the policy covered claims made during the period of insurance, which was after the conveyancing transaction in question. The court held that since the event giving rise to Ms. Wade's claim against Mr. Muir occurred before the insurance policy was in effect, she could not proceed directly against the insurer. Consequently, the application to join the insurer was dismissed.

The court's reasoning focused on the clear terms of the insurance policy and the chronological order of events, ensuring that the policy's coverage was not retrospectively applied. This decision underscored the importance of the timing of events relative to the insurance policy's effective date. The outcome effectively protected the insurer from a claim that fell outside the policy's coverage period.

Orders