Zaki v Better Buildings Constructions Pty Ltd - [2017] NSWSC 1522

Supreme Court

New South Wales

Medium Neutral Citation: Zaki v Better Buildings Constructions Pty Limited [2017] NSWSC 1522
Hearing dates: 18 October 2017
Date of orders: 10 November 2017
Decision date: 10 November 2017
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)   Order the question appearing in order 2 be determined separately and before other questions arising on the application;

(2)   Answer the separate question in the following way:

Question: Upon the true construction of s 6(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) does the onus lie upon the claimant to prove that the proposed claim is within time or upon the insurer to prove that it is out of time?

Answer: Section 6(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) does not alter the general law and the onus lies upon the insurer to prove that a claimant’s claim against an insured person is out of time under Limitation Act 1969 (NSW).

(3) Under s 5 Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), grant leave to the plaintiff to bring proceedings against GIO General Pty Limited by filing and serving a Further Amended Statement of Claim which is Annexure “C” to the affidavit of Suzy David sworn on 18 September 2017;
(4)   The parties’ costs of the application are costs in the cause.
Catchwords: CIVIL PROCEDURE – Leave to proceed against insurer – Separate question – Onus of proof on question of limitation – Consideration of s 5 Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)
Legislation Cited: Civil Liability Amendment (Personal Responsibility) Act 2002 NSW
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Limitation Act 1969 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR; [2009] NSWCA 35
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Blatch v Archer (1774) 98 ER 969
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Hawkins v Clayton t/as Clayton Utz and Co. (1986) 5 NSWLR 109
Kinzett v McCourt (1999) 46 NSWLR 32; [1999] NSWCA 7
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
National Mutual Fire Insurance Co. v Commonwealth of Australia [1981] 1 NSWLR 400
Pullen and Anor v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27
State of New South Wales v Gillett [2012] NSWCA 83
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
The Commonwealth v Mewett (1997) 195 CLR 471
Wardley Australia Limited v Western Australia (1992) 175 CLR 514; [1992] HCA 55
Texts Cited: New South Wales Law Reform Commission, Third party claims on insurance money – Review of s 6 of the Law Reform (Miscellaneous Provisions) Act 1946, Report No…

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: [2017] NSWSC 1522
Decision Date: 10 November 2017

CaseChat Overview and Summary

In the case of Zaki v Better Buildings Constructions Pty Ltd, the plaintiff sought leave to sue the defendant's insurer for damages arising from alleged negligence in the construction of a residential property. The matter was heard in the Supreme Court of New South Wales, where the primary issue was whether the plaintiff had established that the statutory limitation period had not expired when seeking to proceed against the insurer.

The court was required to determine the burden of proof concerning the limitation period, specifically whether it fell on the plaintiff to demonstrate that the period had not lapsed. The court considered the provisions of section 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), which outlines the circumstances under which a plaintiff can bring an action against an insurer. The interpretation of this section was crucial in assessing whether the plaintiff's claim was time-barred.

The court held that the onus of proving the limitation period had not expired lay with the plaintiff. It examined the language of section 5 and concluded that the statutory framework did not shift the burden of proof onto the defendant or the insurer. The court found that the plaintiff had not adequately demonstrated that the statutory limitation period had not expired, leading to the dismissal of the plaintiff's application for leave to proceed against the insurer. The court's reasoning emphasised the importance of the plaintiff establishing the timeliness of their claim before proceeding against the insurer.

Orders