Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Wayland v Bird [2017] NSWCA 26 Hearing dates: 10 February 2017 Decision date: 28 February 2017 Before: Macfarlan JA at [1];
Ward JA at [2];
Emmett AJA at [44]Decision: 1. Leave to appeal refused with costs.
Catchwords: INSURANCE – claims generally – application for leave to appeal from refusal of application by plaintiffs for leave pursuant to s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to join defendant’s professional indemnity insurer – principles governing discretion to grant leave – application for leave to appeal heard concurrently with appeal in event leave were to be granted – complaint that insufficient material for primary judge’s finding that insured’s conduct caused such prejudice that insurer entitled to disclaim liability – complaint that primary judge erred in not finding that there was a real possibility that insured would not be able to meet an adverse judgment – where amount in dispute relatively small and other avenues open to plaintiffs – application for leave to appeal refused. Legislation Cited: Civil Procedure Act 2005 (NSW)
Insurance Contracts Act 1984 (Cth), s 54
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6
Legal Profession Act 2004 (NSW), s 347
Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2 cl 4
Uniform Civil Procedure Rules 2005 (NSW), r 51.10Cases Cited: Bailey v NSW Medical Defence Union Ltd (1995) 184 CLR 399; [1995] HCA 28
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Clarke v State of New South Wales [2015] NSWCA 27
Dunn v Ross Lamb Motors [1978] 1 NSWLR 26
Energize Fitness Pty Ltd v Vero Insurance Ltd [2012] NSWCA 213
Gorczynski v W&FT Osmo Pty Ltd [2010] NSWCA 163
Guild Insurance Ltd v Hepburn [2014] NSWCA 400
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Oswald v Bailey (1987) 11 NSWLR 715
Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397
The Age Company Ltd v Liu (2013) 82 NWLR 268; [2013] NSWCA 26
Tzaidas v Child (2004) 61 NSWLR 18
Zelden v Sewell Henamast Pty Ltd [2011] NSWCA 56Category: Principal judgment Parties: Michael John Wayland and Amanda Kim Wayland (Applicants)
Daniel Bird (First Respondent) (no appearance)
Pacific International Insurance Limited (Second Respondent)Representation: Counsel:
Solicitors:
G Miller QC with Ms N Compton (Applicants)
J Guihot (Second Respondent)
Nash Allen Williams & Wotton (Applicants)
Moray & Agnew (Second Respondent)
File Number(s): 2016/00210331 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Civil
- Date of Decision:
- 3 June 2016
- Before:
- Olsson SC DCJ
- File Number(s):
- 2013/00218885
HEADNOTE
[This Headnote is not to be read as part of the judgment]
This judgment relates to an appeal from a decision of the District Court…
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Details
- AGLC
- Wayland v Bird [2017] NSWCA 26
- Case
- [2017] NSWCA 26
- Decision Date
CaseChat Overview and Summary
The plaintiffs, Wayland and another, sought leave to appeal from a decision of the primary judge who had refused their application for leave to join the defendant's professional indemnity insurer as a party to proceedings pursuant to s 6(4) of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW). The application for leave to appeal was heard concurrently with the substantive appeal, should leave have been granted.
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the insured's conduct had caused such prejudice to the insurer that it was entitled to disclaim liability, and whether the primary judge had wrongly failed to find a real possibility that the insured would be unable to satisfy an adverse judgment.
The Court of Appeal considered the principles governing the discretion to grant leave under s 6(4) of the Act. It was noted that the amount in dispute was relatively small and that other avenues were available to the plaintiffs. The Court found no error in the primary judge's assessment of prejudice or the likelihood of the insured being unable to meet a judgment. Consequently, the Court refused leave to appeal.
Leave to appeal was refused with costs.
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the insured's conduct had caused such prejudice to the insurer that it was entitled to disclaim liability, and whether the primary judge had wrongly failed to find a real possibility that the insured would be unable to satisfy an adverse judgment.
The Court of Appeal considered the principles governing the discretion to grant leave under s 6(4) of the Act. It was noted that the amount in dispute was relatively small and that other avenues were available to the plaintiffs. The Court found no error in the primary judge's assessment of prejudice or the likelihood of the insured being unable to meet a judgment. Consequently, the Court refused leave to appeal.
Leave to appeal was refused with costs.
Orders
Orders of the court
1. Leave to appeal refused with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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