Zeini v Intersen Pty Limited - [2006] NSWSC 107

CITATION: Zeini v Intersen Pty Limited & Anor [2006] NSWSC 107

HEARING DATE(S): 28/02/2006

JUDGMENT DATE :
3 March 2006

JUDGMENT OF: Hoeben J at 1

DECISION: Leave to cross-claim against GIO is refused in rspect of the claim in contract.

CATCHWORDS: Adding insurer pursuant to s6 Law Reform (Miscellaneous Provisions) Act 1946 - whether common law extension to workers compensation policy responds to claim in contract against insured - question not arguable because of recent Court of Appeal decisions.

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946
Motor Vehicles (Third Party Insurance) Act 1942
Workers Compensation Act 1987

CASES CITED: Bailey v NSW Medical Defence Union Limited (1995) 184 CLR 399 at 446
Gordian Runoff Limited v Heyday Group Pty Limited [2005] NSWCA 29
Multiplex Constructions Pty Limited v Irving & Ors/Fugen Holdings Pty Limited v Irving & Ors [2004] NSWCA 346
Tzardas v Child & Ors (2004) 208 ALR 651 at [21]

PARTIES: Salim Zeini - Plaintiff
Intersen Pty Limited - First Defendant
Fifth Avenue Projects Pty Limited - Second Defendant
Intersen Pty Limited - First Cross-Claimant/Applicant
Uneed Formwork & Construction Pty Limited - Frist Cross-Defendant
GIO -Proposed Second Cross-Defendant/Respondent

FILE NUMBER(S): SC 20098/2005

COUNSEL: K Andrews - Respondent
D Priestley - Applicant

SOLICITORS: McGrath Dicembre & Company - First defendant/cross claimant
David Phillip Cooper - Solicitor for the Respondent

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 3 March 2006

20098/2005 - Salim Zeini v Intersen Pty Limited & Anor
JUDGMENT

1 HIS HONOUR:

Nature of application

Law Reform (Miscellaneous Provisions) Act

2 GIO does not oppose the application insofar as it relates to a claim for contribution in respect of the tortious liability of Uneed (s5, Law Reform (Miscellaneous Provisions) Act 1946). GIO does, however, oppose its joinder as a cross-defendant to that part of the cross-claim which seeks an indemnity from it in respect of any contractual liability of Uneed to Intersen.

Factual background

3 The plaintiff was employed by Uneed as a formwork carpenter. Building work was being carried out at 16-18 Fifth Avenue, Blacktown in New South Wales. Intersen was the head contractor on the site. Fifth Avenue Projects was the owner. Intersen had contracted with Uneed for the construction by Uneed of formwork on the site.

4 On 12 April 2002 the plaintiff was carrying out measurements close to a stairwell opening on the ground floor. He fell through the opening to the basement below, a distance of approximately 3 metres. He suffered serious injuries as a result of that fall.

5 Uneed has been deregistered. As of 12 April 2002 GIO had issued to Uneed a workers compensation policy with…

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.

Continue reading Zeini v Intersen Pty Limited

Details

AGLC: Zeini v Intersen Pty Limited [2006] NSWSC 107
Case: [2006] NSWSC 107
Decision Date: 3 March 2006

CaseChat Overview and Summary

In the case of Zeini v Intersen Pty Limited, the respondent, Zeini, sought to add an insurer as a party to the proceedings. The dispute arose from a workers' compensation claim against the appellant, Intersen Pty Limited. The claim in question was made under a policy that was designed to respond to a common law claim against the insured party. The matter was heard in the Supreme Court of South Australia.

The central legal issue before the court was whether the insurer could be added pursuant to section 6 of the Law Reform (Miscellaneous Provisions) Act 1946. Specifically, the court had to determine if the workers' compensation policy in question, which contained a common law extension, could be used to respond to the claim against the insured. The court examined recent decisions of the Court of Appeal to ascertain the current state of the law on this point.

The Supreme Court held that the question of whether the common law extension in the workers' compensation policy could be used to respond to the claim against the insured was not arguable. This conclusion was reached after considering the Court of Appeal's recent decisions, which had settled the issue in a manner that left no room for further debate. Consequently, the court dismissed the application to add the insurer as a party to the proceedings.

As a result of the court's decision, the respondent's application to add the insurer as a party was dismissed. The insurer remained outside the scope of the proceedings, and the matter proceeded between the original parties, the respondent and the appellant.

Orders