Herde v Oxford Aviation Academy (Australia) Pty Ltd [2011] NSWCA 385

Herde v Oxford Aviation Academy (Australia) Pty Ltd [2011] NSWCA 385

Summary judgment should not have been granted because the material before the District Court did not establish to the requisite standard that the insurer had authority to bind the defendant to the release, and the defendant's contention that any authority under cl 5 may have been misused by a settlement also releasing the pilot's estate was not unarguable and should be permitted to go to trial.

Jurisdiction
Australia
Judgment Date
02 December 2011
Procedural Posture
Appeal From District Court Summary Judgment / Leave to Appeal Had Been Granted; Respondent Made an Oral Application to Revoke Leave; Appeal Determined
Outcome
Oral application to revoke leave to appeal dismissed; appeal allowed.
Legal Topics
['summary Judgment' 'arguable Defence' 'authority of Insurer to Settle Claim' 'subrogated Insurance Claim' 'release and Settlement' 'damage by Aircraft']
['civil Procedure' 'insurance' 'aviation'] ['summary Judgment' 'arguable Defence' 'authority of Insurer to Settle Claim' 'subrogated Insurance Claim' 'release and Settlement' 'damage by Aircraft']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal From District Court Summary Judgment / Leave to Appeal Had Been Granted; Respondent Made an Oral Application to Revoke Leave; Appeal Determined

Legal Issues

  1. 1 ['Whether summary judgment for the plaintiff should have been granted where the defendant disputed that his insurer had authority to enter into the release on his behalf.' "Whether cl 5 of the insurance policy gave the insurer authority to settle the plaintiff's claim in the defendant's name." 'Whether it was arguable that the insurer misused its authority by entering a settlement requiring payment by the defendant while also releasing the Estate of Ronald Bertram.' 'Whether the grant of leave to appeal should be revoked after the policy was tendered on the oral application.']

Ratio Decidendi

Summary judgment should not have been granted because the material before the District Court did not establish to the requisite standard that the insurer had authority to bind the defendant to the release, and the defendant's contention that any authority under cl 5 may have been misused by a settlement also releasing the pilot's estate was not unarguable and should be permitted to go to trial.

Court Disposition

Oral application to revoke leave to appeal dismissed; appeal allowed.

Orders

  • ['Oral application to revoke the leave to appeal dismissed.' 'Appeal allowed.' "Orders 1 and 2 made on 22 October 2010 set aside, and in lieu thereof the plaintiff's notice of motion dismissed." "Order 4 made on 22 October 2010 set aside, and in lieu thereof the plaintiff ordered to pay the defendant's costs of the...