Ritchie v Advanced Plumbing and Drains Pty Ltd [2019] NSWSC 1028

Ritchie v Advanced Plumbing and Drains Pty Ltd [2019] NSWSC 1028

CGU, the insurer, failed to discharge its statutory onus to establish it was entitled to disclaim liability under the insurance policy for Advanced Plumbing’s potential liability in respect of the bushfire. There is an arguable case Advanced Plumbing is liable to the plaintiff and group members, and an arguable case...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
16 August 2019
Procedural Posture
Interlocutory Motion; Representative Action / Application for Leave to Proceed Against Insurer Under S 5 of the Civil Liability (third Party Claims Against Insurers) Act 2017 (nsw); Orders Following Hearing
Outcome
Leave granted to plaintiff to proceed against the insurer; orders made as sought in the notice of motion.
Legal Topics
['leave to Proceed Against Insurer' 'third Party Claims Against Insurers' 'construction of Insurance Contracts' 'exclusion and Limitation Clauses' 'interpretation of Insurance Policies' 'negligence – Bushfire Liability']
['civil Procedure' 'contract Law' 'insurance Law' 'tort Law'] ['leave to Proceed Against Insurer' 'third Party Claims Against Insurers' 'construction of Insurance Contracts' 'exclusion and Limitation Clauses' 'interpretation of Insurance Policies' 'negligence – Bushfire Liability']

Source-derived case record

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Procedural Posture

Interlocutory Motion; Representative Action / Application for Leave to Proceed Against Insurer Under S 5 of the Civil Liability (third Party Claims Against Insurers) Act 2017 (nsw); Orders Following Hearing

Legal Issues

  1. 1 ['Whether there is an arguable case that the insured (Advanced Plumbing) is liable to the plaintiff for losses from bushfire' 'Whether there is an arguable case that the insurance policy responds to that liability' "Whether the insurer (CGU) has established entitlement to disclaim liability under the policy, particularly regarding 'business ground' and 'welding ground' exclusions"]

Ratio Decidendi

CGU, the insurer, failed to discharge its statutory onus to establish it was entitled to disclaim liability under the insurance policy for Advanced Plumbing’s potential liability in respect of the bushfire. There is an arguable case Advanced Plumbing is liable to the plaintiff and group members, and an arguable case that the policy responds to that liability. The exclusion for 'spark producing equipment' does not clearly apply to the power cutter used, on a proper construction of the policy wording. Leave to proceed against the insurer and to amend the claim is granted.

Court Disposition

Leave granted to plaintiff to proceed against the insurer; orders made as sought in the notice of motion.

Orders

  • ['Grant leave to the plaintiff to proceed against Insurance Australia Limited trading as CGU Insurance pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)' 'Grant leave to the plaintiff to file and serve an Amended Statement of Claim to include a claim for relief against...