The Owners - Strata Plan 69312 v Allianz Australia Insurance Limited [2012] NSWSC 1477

The Owners - Strata Plan 69312 v Allianz Australia Insurance Limited [2012] NSWSC 1477

The plaintiff's claim was for loss caused by the insurer's failure to indemnify under the Policy. Although the insured building loss may have arisen from the builder's failure to take reasonable care, ss 34 and 35 require the relevant failure to take reasonable care to be that of the defendant whose liability is to be limited. The insurer's conduct in failing to indemnify was not a failure to take reasonable care, so the claim was not an apportionable claim and the proposed amendment was not reasonably arguable.

Jurisdiction
Australia
Judgment Date
23 November 2012
Procedural Posture
Practice and Procedure; Application to Amend Technology & Construction List Response to Plead Proportionate Liability Under S 34 Civil Liability Act 2002 / Interlocutory Application by Notice of Motion
Outcome
Application to amend refused; defendant's Notice of Motion dismissed with costs.
Legal Topics
['application to Amend Pleading' 'apportionable Claims' 'insurance Indemnity' 'civil Liability Act 2002 Ss 34 and 35' 'home Building Act 1989 Statutory Warranties']
['civil Procedure' 'insurance' 'construction Law' 'proportionate Liability'] ['application to Amend Pleading' 'apportionable Claims' 'insurance Indemnity' 'civil Liability Act 2002 Ss 34 and 35' 'home Building Act 1989 Statutory Warranties']

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Procedural Posture

Practice and Procedure; Application to Amend Technology & Construction List Response to Plead Proportionate Liability Under S 34 Civil Liability Act 2002 / Interlocutory Application by Notice of Motion

Legal Issues

  1. 1 ['Whether a claim against an insurer for indemnity under an insurance policy is an apportionable claim under s 34 of the Civil Liability Act 2002.' "Whether the plaintiff's claim for indemnity was a claim for economic loss or damage to property in an action for damages arising from a failure to take reasonable care." 'Whether the proposed amendment pleading proportionate liability was reasonably arguable.']

Ratio Decidendi

The plaintiff's claim was for loss caused by the insurer's failure to indemnify under the Policy. Although the insured building loss may have arisen from the builder's failure to take reasonable care, ss 34 and 35 require the relevant failure to take reasonable care to be that of the defendant whose liability is to be limited. The insurer's conduct in failing to indemnify was not a failure to take reasonable care, so the claim was not an apportionable claim and the proposed amendment was not reasonably arguable.

Court Disposition

Application to amend refused; defendant's Notice of Motion dismissed with costs.

Orders

  • ["The defendant's Notice of Motion is dismissed with costs."]