Wayland v Bird [2017] NSWCA 26

Wayland v Bird [2017] NSWCA 26

Leave to appeal was refused because the applicants did not establish a basis warranting appellate intervention in the discretionary refusal of leave to join the insurer. The primary judge was entitled to take into account the possibility that the insurer could disclaim liability due to prejudice from Mr Bird's lack of cooperation. Even if the primary judge erred by treating that prejudice as determinative of the s 6(4) application, her reasons showed she would have refused leave as a matter of discretion in any event. The evidence did not compel a finding that there was a real possibility that Mr Bird could not satisfy a judgment, the amount in dispute was relatively small, other avenues...

Jurisdiction
Australia
Judgment Date
28 February 2017
Procedural Posture
Application for Leave to Appeal From Refusal of Leave Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw) to Join a Professional Indemnity Insurer / Court of Appeal; Application for Leave to Appeal Heard Concurrently With the Appeal in the Event Leave Were Granted
Outcome
Leave to appeal refused with costs.
Legal Topics
['joinder of Insurer' 'statutory Charge on Insurance Moneys' 'discretion to Grant Leave Under S 6(4)' 'insurer Disclaimer of Liability' "prejudice Caused by Insured's Lack of Cooperation" 'leave to Appeal From Discretionary Decision']
['insurance' 'civil Procedure' 'professional Indemnity Insurance'] ['joinder of Insurer' 'statutory Charge on Insurance Moneys' 'discretion to Grant Leave Under S 6(4)' 'insurer Disclaimer of Liability' "prejudice Caused by Insured's Lack of Cooperation" 'leave to Appeal From Discretionary Decision']

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Procedural Posture

Application for Leave to Appeal From Refusal of Leave Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw) to Join a Professional Indemnity Insurer / Court of Appeal; Application for Leave to Appeal Heard Concurrently With the Appeal in the Event Leave Were Granted

Legal Issues

  1. 1 ['Whether the primary judge erred in refusing leave under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to join the insurer as a defendant.' "Whether the primary judge erred by taking into account, or giving determinative weight to, the possibility that the insurer was entitled to disclaim liability because of the insured's lack of cooperation." 'Whether there was sufficient evidence that there was a real possibility that the insured would be unable to meet any adverse judgment.' 'Whether leave to appeal should be granted from the discretionary refusal of the joinder application.']

Ratio Decidendi

Leave to appeal was refused because the applicants did not establish a basis warranting appellate intervention in the discretionary refusal of leave to join the insurer. The primary judge was entitled to take into account the possibility that the insurer could disclaim liability due to prejudice from Mr Bird's lack of cooperation. Even if the primary judge erred by treating that prejudice as determinative of the s 6(4) application, her reasons showed she would have refused leave as a matter of discretion in any event. The evidence did not compel a finding that there was a real possibility that Mr Bird could not satisfy a judgment, the amount in dispute was relatively small, other avenues...

Court Disposition

Leave to appeal refused with costs.

Orders

  • ['Leave to appeal refused with costs.']