The Christian and Missionary Alliance of Australasia Property Trust v Alameddine [2014] NSWLC 17

The Christian and Missionary Alliance of Australasia Property Trust v Alameddine [2014] NSWLC 17

Leave under s 6(4) was granted because it was agreed there was an arguable case against Ma and that NRMA held a responding policy, and the unsuccessful efforts by both the plaintiff and Alameddine to locate Ma established a real possibility that enforcement of any judgment against Ma would be frustrated unless direct access to the insurer were available. The beneficial purpose of the legislation, the fact that an insured who disappears may justify leave, NRMA's existing participation in the amalgamated proceedings, and the overriding purpose in s 56 of the Civil Procedure Act 2005 supported making the orders.

Jurisdiction
Australia
Judgment Date
02 October 2014
Procedural Posture
Civil Proceedings / Interlocutory Notice of Motion for Leave to Proceed Against and Join Insurer, Leave to Amend, and Setting Aside Default Judgment
Outcome
The plaintiff's motion was granted; NRMA was joined as third defendant, leave to proceed and amend was granted, default judgment against the second defendant was set aside, and costs of the motion were ordered to be costs in the cause.
Legal Topics
['joinder of Parties' 'joinder of Insurers' 'leave Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946' 'claims Against Insurer Under S 51 of the Insurance Contracts Act 1984 (cth)' 'viable Defendant' 'default Judgment']
['civil Procedure' 'insurance Law' 'tort Law'] ['joinder of Parties' 'joinder of Insurers' 'leave Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946' 'claims Against Insurer Under S 51 of the Insurance Contracts Act 1984 (cth)' 'viable Defendant' 'default Judgment']

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Procedural Posture

Civil Proceedings / Interlocutory Notice of Motion for Leave to Proceed Against and Join Insurer, Leave to Amend, and Setting Aside Default Judgment

Legal Issues

  1. 1 ['Whether leave should be granted under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) for the plaintiff to proceed directly against the insurer.' 'Whether Insurance Australia Limited t/as NRMA Insurance should be joined as the third defendant.' 'Whether there was a real possibility that any judgment obtained against Xinli Ma would remain unsatisfied because Ma could not be located or was not a viable defendant.' 'Whether the default judgment entered against the second defendant on 27 August 2013 should be set aside.']

Ratio Decidendi

Leave under s 6(4) was granted because it was agreed there was an arguable case against Ma and that NRMA held a responding policy, and the unsuccessful efforts by both the plaintiff and Alameddine to locate Ma established a real possibility that enforcement of any judgment against Ma would be frustrated unless direct access to the insurer were available. The beneficial purpose of the legislation, the fact that an insured who disappears may justify leave, NRMA's existing participation in the amalgamated proceedings, and the overriding purpose in s 56 of the Civil Procedure Act 2005 supported making the orders.

Court Disposition

The plaintiff's motion was granted; NRMA was joined as third defendant, leave to proceed and amend was granted, default judgment against the second defendant was set aside, and costs of the motion were ordered to be costs in the cause.

Orders

  • ['Pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), grant leave to the plaintiff to proceed against the third defendant.' 'That Insurance Australia Limited t/as NRMA Insurance (ACN 000 016 722) be joined as the third defendant.' 'Grant leave to the plaintiff to file an Amended Statement...