Zhang v ROC Services (NSW) Pty Ltd

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Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Zhang v ROC Services (NSW) Pty Ltd; National Transport Insurance by its manager NTI Ltd v Zhang [2016] NSWCA 370
Hearing dates:20, 21 October 2016
Decision date: 22 December 2016
Before: Macfarlan JA at [1];
Leeming JA at [10];
Sackville AJA at [253]
Decision:

In proceeding 2016/140032 (Mr Zhang’s appeal against ROC):
1. Appeal dismissed.
2. Mr Zhang to pay ROC’s costs of the appeal as agreed or assessed.

 In proceeding 2016/134168 (NTI’s application for leave to appeal):
1. Grant leave in respect of grounds 1-3 of the draft notice of appeal, and otherwise refuse leave.
2. Direct NTI to file and serve a notice of appeal, limited to grounds 1-3, within 28 days.
3. Grant liberty to apply to a single Judge of Appeal, on three days’ notice, in the event that any party wishes to apply as to the parties joined by the notice of appeal.
4. Appeal dismissed.
5. NTI to pay the costs of each of Mr Zhang and Mr Tabuso as agreed or assessed.
6. No order as to the costs of Mr Popovic and Calabro, with the intent that they bear their own costs.
Catchwords:

APPEALS – interlocutory decision – whether party can wait for final judgment and appeal as of right – consequences of one defendant seeking leave to appeal and another not – whether other defendant estopped

 

CONTRACTS – contract of insurance – construction – complex and lengthy clause – regard to text, context and purpose – importance of grammatical structure – significance of punctuation – reading contract as a whole – regard to legislative context – whether proposed construction leaves other clauses with work to do

 

COSTS – appeal from adverse costs orders – whether appeal as of right from failure to obtain third party costs order – whether conduct of former director attributable to insured for purposes of exclusion clause – Sanderson order – whether necessary to show conduct which induced or encouraged plaintiff to sue defendant

  INSURANCE – exclusion clause – construction – avoidance of consequences which are irrational and unjust – relevance of contra proferentem maxim – rule of last resort
Legislation Cited: Civil Liability Act 2002 (NSW), s 5E
Corporations Act 2001 (Cth), ss 471A, 601AD
Evidence Act 1995 (Cth), ss 5, 143(1)(a)
Insurance Contracts Act 1984 (Cth), s 46
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6
Motor Accident Insurance Act 1994 (Qld), ss 5, 23(1)(a); cl 1(3)(a) of the Schedule
Motor Accidents Compensation Act 1999 (NSW), s 3A
Supreme Court Act 1970 (NSW), s 101(2)(c)
Trade Practices Act 1974 (Cth), ss 74, 75AD
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26
Allianz Australia Insurance Ltd v Haddad [2015] NSWCA 186
Apple and Pear Australia Ltd v Pink Lady America LLC [2016] VSCA 280
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Details
Case
[2016] NSWCA 370
Decision Date

CaseChat Overview and Summary

The proceedings involved an appeal by Mr Zhang against ROC Services (NSW) Pty Ltd and an application for leave to appeal by NTI. The dispute concerned the construction of an insurance contract, specifically an exclusion clause, and its application to a claim made by Mr Zhang. The appeals were heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether Mr Zhang had a right to appeal an interlocutory decision, the consequences of one defendant seeking leave to appeal while another did not, and whether the other defendant was estopped from pursuing its appeal. Furthermore, the Court had to consider the construction of a complex exclusion clause within a contract of insurance, including the relevance of legislative context and the application of interpretive principles such as reading the contract as a whole and the *contra proferentem* maxim. The Court also addressed whether an appeal as of right lay from adverse costs orders, particularly in relation to a failure to obtain a third-party costs order, and whether the conduct of a former director could be attributed to the insured for the purposes of the exclusion clause.

In relation to the construction of the insurance contract, the Court emphasised the importance of considering the text, context, and purpose of the clause, paying close attention to grammatical structure and punctuation. It held that the *contra proferentem* rule was a last resort. The Court dismissed Mr Zhang's appeal against ROC, ordering him to pay ROC's costs. Leave to appeal was granted to NTI in respect of specific grounds, with the appeal ultimately being dismissed, and NTI was ordered to pay the costs of Mr Zhang and Mr Tabuso. No order was made as to the costs of Mr Popovic and Calabro, who were to bear their own costs.

Orders

Orders of the court

In proceeding 2016/140032 (Mr Zhang’s appeal against ROC):

1. Appeal dismissed.

2. Mr Zhang to pay ROC’s costs of the appeal as agreed or assessed.

In proceeding 2016/134168 (NTI’s application for leave to appeal):

1. Grant leave in respect of grounds 1-3 of the draft notice of appeal, and otherwise refuse leave.

2. Direct NTI to file and serve a notice of appeal, limited to grounds 1-3, within 28 days.

3. Grant liberty to apply to a single Judge of Appeal, on three days’ notice, in the event that any party wishes to apply as to the parties joined by the notice of appeal.

4. Appeal dismissed.

5. NTI to pay the costs of each of Mr Zhang and Mr Tabuso as agreed or assessed.

6. No order as to the costs of Mr Popovic and Calabro, with the intent that they bear their own 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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