Limit (No 3) Limited v ACE Insurance Limited (No 4) [2009] NSWSC 1046

Limit (No 3) Limited v ACE Insurance Limited (No 4) [2009] NSWSC 1046

Leave to reopen was granted because the Court accepted that the conclusion that the reasonable precautions condition applied to a claim characterised as a Section 2 claim was not a point on which Lloyds had been heard, and that the decision on that narrow issue had miscarried in a way that could appropriately be corrected before entry of judgment. The Court also accepted that the June reasons contained an attribution error in paragraph [308], not in paragraph [60], because the body of Dr Redman's report, the absence of cross-examination or submissions to the contrary, and the experts' agreed chainage evidence supported Lloyds' allocation.

Jurisdiction
Australia
Judgment Date
30 September 2009
Procedural Posture
Procedural Application for Leave to Reopen / After Reasons for Judgment Had Been Handed Down and Before Judgment Was Entered
Outcome
The plaintiffs succeeded on their notice of motion; leave was granted to reopen on Issue 22 and the attribution point, and the defendant was to pay the plaintiffs' costs.
Legal Topics
['application for Leave to Reopen' 'difference in Conditions Clause' 'reasonable Precautions Condition' 'professional Services Exclusion' 'attribution of Damage' 'costs']
['civil Procedure' 'insurance'] ['application for Leave to Reopen' 'difference in Conditions Clause' 'reasonable Precautions Condition' 'professional Services Exclusion' 'attribution of Damage' 'costs']

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Procedural Posture

Procedural Application for Leave to Reopen / After Reasons for Judgment Had Been Handed Down and Before Judgment Was Entered

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave to reopen Issue 22 concerning the applicability of the reasonable precautions condition and professional services exclusion to Section 2 cover under the Lloyds policy.' 'Whether the June reasons contained an error in respect of attribution of the Deep Sewer Repair MH2 – MH4 damage.' 'Whether the June reasons required correction in relation to the formulation of exclusion 5 of the ACE policy.']

Ratio Decidendi

Leave to reopen was granted because the Court accepted that the conclusion that the reasonable precautions condition applied to a claim characterised as a Section 2 claim was not a point on which Lloyds had been heard, and that the decision on that narrow issue had miscarried in a way that could appropriately be corrected before entry of judgment. The Court also accepted that the June reasons contained an attribution error in paragraph [308], not in paragraph [60], because the body of Dr Redman's report, the absence of cross-examination or submissions to the contrary, and the experts' agreed chainage evidence supported Lloyds' allocation.

Court Disposition

The plaintiffs succeeded on their notice of motion; leave was granted to reopen on Issue 22 and the attribution point, and the defendant was to pay the plaintiffs' costs.

Orders

  • ['Leave granted to the plaintiffs to reopen on Issue 22 and the attribution point.' "The defendant should pay the plaintiffs' costs." 'The June reasons would be amended in relation to the identified matters and incorporated into the existing judgment.']