Roy Atkin Johnstone v Broad Group Holdings Pty Limited & Ors [2011] NSWDC 181

Roy Atkin Johnstone v Broad Group Holdings Pty Limited & Ors [2011] NSWDC 181

The plaintiff established on a prima facie basis that there was an insurance contract between Wesfarmers and SMS Formwork Pty Limited that covered SMS's liability, if any, to the plaintiff immediately before deregistration. The cause of action under s 601AG of the Corporations Act 2001 arose on SMS's deregistration on 17 October 2010, so the plaintiff was within time. Alternatively, Wesfarmers did not establish that the plaintiff knew or ought to have known on 12 December 2007 that SMS was at fault; the earliest date of discoverability was 3 November 2008, which also left the plaintiff within time.

Jurisdiction
Australia
Judgment Date
18 August 2011
Procedural Posture
Civil Personal Injury Proceedings / Plaintiff's Motion for Leave to Join Wesfarmers General Insurance Limited and File an Amended Statement of Claim
Outcome
The plaintiff's motion was granted.
Legal Topics
['deregistered Company' 'action Against Insurer of Deregistered Company' 'insurance Contract Covering Liability Immediately Before Deregistration' 'date of Discoverability' 'amendment and Joinder']
['insurance Law' 'corporations Law' 'limitation of Actions' 'civil Procedure' 'personal Injury'] ['deregistered Company' 'action Against Insurer of Deregistered Company' 'insurance Contract Covering Liability Immediately Before Deregistration' 'date of Discoverability' 'amendment and Joinder']

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Procedural Posture

Civil Personal Injury Proceedings / Plaintiff's Motion for Leave to Join Wesfarmers General Insurance Limited and File an Amended Statement of Claim

Legal Issues

  1. 1 ["Whether it was established that there was an insurance contract that covered SMS Formwork Pty Limited's liability immediately before it was deregistered." 'Whether s 601AG of the Corporations Act 2001 created a new cause of action arising on the date of deregistration.' "If not, whether the plaintiff's right of action under s 601AG was statute barred."]

Ratio Decidendi

The plaintiff established on a prima facie basis that there was an insurance contract between Wesfarmers and SMS Formwork Pty Limited that covered SMS's liability, if any, to the plaintiff immediately before deregistration. The cause of action under s 601AG of the Corporations Act 2001 arose on SMS's deregistration on 17 October 2010, so the plaintiff was within time. Alternatively, Wesfarmers did not establish that the plaintiff knew or ought to have known on 12 December 2007 that SMS was at fault; the earliest date of discoverability was 3 November 2008, which also left the plaintiff within time.

Court Disposition

The plaintiff's motion was granted.

Orders

  • ['I grant leave to the plaintiff to join Wesfarmers General Insurance Limited to the proceedings.' 'I grant leave to the plaintiff to file an amended statement of claim in the form annexed to the amended notice of motion filed on 22 July 2011 marked A. The amended statement of claim is to be filed and served by 1...