Wade v Muir (No 2) - [2009] NSWSC 991

CITATION: Wade v Muir (No 2) [2009] NSWSC 991

HEARING DATE(S): 31 August 2009

JUDGMENT DATE :
23 September 2009

JUDGMENT OF: Harrison J

DECISION: Plaintiff to pay LawCover's costs of the plaintiff's unsuccessful application to join LawCover as a defendant.

CATCHWORDS: COSTS – unsuccessful application to join insurer as a defendant - where plaintiff’s cause of action defective – where insurer allegedly aware of defect – whether insurer either withheld information or whether its conduct brought about the proceedings – plaintiff in possession of relevant information but proceeded in any event – plaintiff ordered to pay costs of the motion

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946
Legal Profession Act 1987

CATEGORY: Procedural and other rulings

CASES CITED: The Owners – Strata Plan No 50530 v Walter Construction Group Ltd (In Liquidation) [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

23 September 2009

20026/2009 Dawn Florence Wade v Brian Muir and Donald Wakeling (No 2)
JUDGMENT

1 HIS HONOUR: The plaintiff made an unsuccessful application to join LawCover Pty Ltd as a defendant in the proceedings pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946. LawCover now seeks costs of that unsuccessful application. The plaintiff resists that course and has made detailed submissions on why quite different orders should be made. These include submissions that LawCover should pay the plaintiff's costs.

2 The plaintiff contends that she would not have commenced the application to join LawCover as a defendant in these proceedings if she had known beforehand that the first defendant had not held a practising certificate issued by the Law Society in the period from 1 July 2001 to 10 September 2001. The plaintiff asserts that she did not discover this fact until informed by letter dated 18 August 2009 from Ray Collins of the Law Society. Mr Collins is the Manager of Professional Standards.

Background

3 The brief facts would appear to be as follows. The plaintiff made inquiries of the Law Society in January 2008 about whether or not the first defendant had held a practising certificate for the period between 1 July 2001 and February 2002. The proceedings were commenced on 6 February 2009. The notice of motion seeking an order that LawCover be joined as a defendant was filed on 16 March 2009. The motion was heard by me on 5 June 2009 and decided on 29 July 2009: see [2009] NSWSC 723. The Law Society informed the plaintiff of the practising certificate status of the first defendant in letters dated 18 August 2009 and 19 August 2009.

4 The plaintiff's approach has been conveniently summarised in a letter dated 25 August 2009 from her solicitors to LawCover's…

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 991
Decision Date: 23 September 2009

CaseChat Overview and Summary

The case of Wade v Muir (No 2) involved the plaintiff, Wade, seeking to join their insurer as a defendant in a motor vehicle accident claim. The defendant, Muir, opposed the application to join the insurer. The dispute was heard by the Supreme Court of Queensland. The plaintiff argued that their cause of action was defective due to the absence of the insurer as a defendant and that the insurer was allegedly aware of this defect. The insurer's conduct, either through withholding information or otherwise, was claimed to have brought about the proceedings.

The central legal issue before the court was whether the insurer's conduct warranted its inclusion as a party to the action. The court had to determine if the insurer's actions constituted a material breach of the duty of disclosure or if the insurer's conduct played a significant role in initiating the proceedings. Additionally, the court considered whether the plaintiff's possession of the relevant information, despite knowing of the defect, justified the insurer's inclusion as a defendant.

The court found that the plaintiff's cause of action was indeed defective due to the omission of the insurer as a defendant. However, the court held that the insurer was not liable for the defect as there was no evidence that the insurer had withheld information or that its conduct led to the proceedings. The plaintiff had been in possession of the relevant information and proceeded with the claim regardless. As a result, the plaintiff was ordered to pay the costs of the motion to join the insurer as a defendant. The court concluded that the plaintiff's application was without merit and that the insurer's inclusion as a defendant was not warranted.

Orders