Sharma v Soar Aviation Aircraft Holdings Pty Ltd & Anor [2024] NSWDC 567

Sharma v Soar Aviation Aircraft Holdings Pty Ltd & Anor [2024] NSWDC 567

Leave is granted to join the insurer as a defendant under ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), on the basis that an arguable case exists against the insured, there is a reasonable possibility the insured cannot satisfy a judgment, and an arguable case that the policy responds; leave to plead an alternative negligence claim is not futile as statutory exclusivity depends on factual findings; discontinuance against the original defendants is appropriate with no order as to costs.

Parties
First Plaintiff: Nandini Sharma; Second Plaintiff: Rajneesh Sharma; Third Plaintiff: Shivank Sharma; First Defendant: Soar Aviation Aircraft Holdings Pty Ltd; Second Defendant: Gobel Aviation Pty Ltd trading as Soar Advanced Flight Training; Respondent to Plaintiffs' Amended Notice of Motion: Certain Underwriters at Lloyd's of London
Jurisdiction
Australia
Judgment Date
29 November 2024
Procedural Posture
Civil / Application for Leave to Join Insurer/plead Alternative Claim/discontinue Against Existing Defendants
Outcome
Leave granted to join insurer; leave granted to discontinue against existing defendants; leave granted to plead alternative negligence claim; costs of motion to be costs in the cause.
Legal Topics
Third Party Claims Against Insurers, Carriers' Liability, Nervous Shock, Negligence, Pleadings, Joinder of Parties, Statutory Interpretation
Civil Procedure Insurance Law Aviation Law Third Party Claims Against Insurers Carriers' Liability Nervous Shock Negligence Pleadings +2 more

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Parties

Nandini Sharma

First Plaintiff

Rajneesh Sharma

Second Plaintiff

Shivank Sharma

Third Plaintiff

Soar Aviation Aircraft Holdings Pty Ltd

First Defendant

Gobel Aviation Pty Ltd trading as Soar Advanced Flight Training

Second Defendant

Certain Underwriters at Lloyd's of London

Respondent to Plaintiffs' Amended Notice of Motion

Procedural Posture

Civil / Application for Leave to Join Insurer/plead Alternative Claim/discontinue Against Existing Defendants

Legal Issues

  1. 1 Whether leave should be granted to join the insurer as a defendant under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)
  2. 2 Whether plaintiffs should have leave to discontinue against existing defendants
  3. 3 Whether leave should be granted to plead an alternative negligence claim

Ratio Decidendi

Leave is granted to join the insurer as a defendant under ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), on the basis that an arguable case exists against the insured, there is a reasonable possibility the insured cannot satisfy a judgment, and an arguable case that the policy responds; leave to plead an alternative negligence claim is not futile as statutory exclusivity depends on factual findings; discontinuance against the original defendants is appropriate with no order as to costs.

Court Disposition

Leave granted to join insurer; leave granted to discontinue against existing defendants; leave granted to plead alternative negligence claim; costs of motion to be costs in the cause.

Orders

  • Grant leave pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to join Certain Underwriters at Lloyd's of London as the third defendant to these proceedings.
  • Grant leave to the plaintiffs to discontinue these proceedings against the first defendant and the second defendant, with no order as to costs between those parties.