Hansen v Sedrak [2017] NSWLC 4

Hansen v Sedrak [2017] NSWLC 4

The plaintiffs did not establish that the earlier consent judgment was entered against good faith: the defendants' solicitor had not hidden AAMI's subrogated claim, Right2Drive was on notice of AAMI's repair claim, the consent judgment was prepared by the insurer's representatives, and there was no course of conduct designed to inhibit discovery of the insurer's claim. The Morganite principle did not impose a positive duty on the defendants to inform the plaintiffs of possible prejudice to a secondary claim. The section 24 pleading was not struck out because a subrogated insurer does not have an independent cause of action, and while the earlier consent judgment remained extant it...

Jurisdiction
Australia
Judgment Date
24 March 2017
Procedural Posture
Civil Proceedings; Notice of Motion in Motor Vehicle Collision Damages Claim / Application to Set Aside Earlier Consent Judgment Under UCPR 36.15 and Strike Out Part of Defence Relying on Section 24 of the Civil Procedure Act 2005 Under UCPR 14.28
Outcome
Motion dismissed
Legal Topics
['setting Aside Consent Judgment' 'good Faith' 'splitting a Cause of Action' 'subrogation' 'morganite Principle' 'strike Out of Defence']
['civil Procedure' 'insurance' 'motor Vehicle Negligence'] ['setting Aside Consent Judgment' 'good Faith' 'splitting a Cause of Action' 'subrogation' 'morganite Principle' 'strike Out of Defence']

Case Brief

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Procedural Posture

Civil Proceedings; Notice of Motion in Motor Vehicle Collision Damages Claim / Application to Set Aside Earlier Consent Judgment Under UCPR 36.15 and Strike Out Part of Defence Relying on Section 24 of the Civil Procedure Act 2005 Under UCPR 14.28

Legal Issues

  1. 1 ["Whether the earlier consent judgment entered in proceedings commenced by the plaintiffs' subrogated insurer should be set aside as entered against good faith under UCPR 36.15." "Whether the defendants' pleading relying on section 24 of the Civil Procedure Act 2005 should be struck out on the basis that the earlier subrogated proceedings involved different persons." 'Whether the plaintiffs impermissibly split their cause of action by pursuing uninsured loss of use after judgment was entered for insured repair-related losses arising from the same collision.']

Ratio Decidendi

The plaintiffs did not establish that the earlier consent judgment was entered against good faith: the defendants' solicitor had not hidden AAMI's subrogated claim, Right2Drive was on notice of AAMI's repair claim, the consent judgment was prepared by the insurer's representatives, and there was no course of conduct designed to inhibit discovery of the insurer's claim. The Morganite principle did not impose a positive duty on the defendants to inform the plaintiffs of possible prejudice to a secondary claim. The section 24 pleading was not struck out because a subrogated insurer does not have an independent cause of action, and while the earlier consent judgment remained extant it...

Court Disposition

Motion dismissed

Orders

  • ["The plaintiffs' notice of motion was dismissed."]