Chubb Insurance Australia Ltd v Giabal Pty Ltd; Catlin Australia Pty Ltd v Giabal Pty Ltd [2020] NSWCA 309

Chubb Insurance Australia Ltd v Giabal Pty Ltd; Catlin Australia Pty Ltd v Giabal Pty Ltd [2020] NSWCA 309

Leave to appeal was refused because the primary judge's interlocutory decision determined only that the insurers had not established beyond argument an entitlement to disclaim liability, not the ultimate policy construction or disclaimer issues. Given the absence of a final determination, the possibility that pleadings could be reformulated, and the limited utility of appellate review of the discretionary decision at that stage, the applications should be dismissed with costs.

Jurisdiction
Australia
Judgment Date
30 November 2020
Procedural Posture
Applications for Leave to Appeal / Court of Appeal Determination on the Papers From an Interlocutory Judgment of the Supreme Court of New South Wales
Outcome
Applications for leave to appeal dismissed with costs.
Legal Topics
['third Party Claims Against Insurers' 'leave to Appeal' 'interlocutory Decision' 'disclaimer of Liability' 'policy Construction']
['insurance Law' 'civil Procedure' 'appeals'] ['third Party Claims Against Insurers' 'leave to Appeal' 'interlocutory Decision' 'disclaimer of Liability' 'policy Construction']

Case Brief

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Procedural Posture

Applications for Leave to Appeal / Court of Appeal Determination on the Papers From an Interlocutory Judgment of the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from the interlocutory judgment granting leave to proceed against the insurers under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).' 'Whether the insurers had established that their entitlement to disclaim liability was beyond argument.' "Whether there was utility in appellate review where the primary judge had made no final determination of the insurers' liability or entitlement to disclaim."]

Ratio Decidendi

Leave to appeal was refused because the primary judge's interlocutory decision determined only that the insurers had not established beyond argument an entitlement to disclaim liability, not the ultimate policy construction or disclaimer issues. Given the absence of a final determination, the possibility that pleadings could be reformulated, and the limited utility of appellate review of the discretionary decision at that stage, the applications should be dismissed with costs.

Court Disposition

Applications for leave to appeal dismissed with costs.

Orders

  • ['In 2020/267797: Amended summons seeking leave to appeal filed 21 October 2020, dismissed with costs.' 'In 2020/270262: Amended summons seeking leave to appeal filed 21 October 2020, dismissed with costs.']