Nader v Aboulahaf [2014] NSWDC 14

Nader v Aboulahaf [2014] NSWDC 14

The defendant/applicant could not join the Nominal Defendant because, although full details of the allegations then known were provided in time, the late notice was not supported by a satisfactory explanation: NRMA Insurance should have promptly followed up the claim-form diagrams suggesting a second vehicle and should have attempted to approach the insured minor driver or a parent. In addition, the Court was not satisfied that due inquiry or search to identify the unidentified vehicle had been made, as earlier inquiry should have been undertaken before the scent was cold.

Jurisdiction
Australia
Judgment Date
07 February 2014
Procedural Posture
Interlocutory Applications / Notices of Motion by the Defendant/applicant Seeking to Join the Nominal Defendant in Motor Accident Proceedings
Outcome
The four notices of motion were dismissed; cross claims against the Nominal Defendant were dismissed; the defendant/applicant was ordered to pay the Nominal Defendant's costs of the notice of motion.
Legal Topics
['compulsory Third Party Insurance' 'nominal Defendant' 'unidentified Vehicle' 'joinder' 'notice Requirements' 'due Inquiry and Search']
['insurance' 'motor Accidents' 'civil Procedure'] ['compulsory Third Party Insurance' 'nominal Defendant' 'unidentified Vehicle' 'joinder' 'notice Requirements' 'due Inquiry and Search']

Case Brief

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Procedural Posture

Interlocutory Applications / Notices of Motion by the Defendant/applicant Seeking to Join the Nominal Defendant in Motor Accident Proceedings

Legal Issues

  1. 1 ['Whether the defendant/applicant gave a full and satisfactory explanation under s 36(5) of the Motor Accidents Compensation Act 1999 (NSW) for not giving notice to the Nominal Defendant within the three-month period.' 'Whether the defendant/applicant provided the Nominal Defendant within time with full details of the allegations made against it under s 36(6) of the Motor Accidents Compensation Act 1999 (NSW).' 'Whether due inquiry or search to identify the unidentified vehicle had been made before joinder of the Nominal Defendant.']

Ratio Decidendi

The defendant/applicant could not join the Nominal Defendant because, although full details of the allegations then known were provided in time, the late notice was not supported by a satisfactory explanation: NRMA Insurance should have promptly followed up the claim-form diagrams suggesting a second vehicle and should have attempted to approach the insured minor driver or a parent. In addition, the Court was not satisfied that due inquiry or search to identify the unidentified vehicle had been made, as earlier inquiry should have been undertaken before the scent was cold.

Court Disposition

The four notices of motion were dismissed; cross claims against the Nominal Defendant were dismissed; the defendant/applicant was ordered to pay the Nominal Defendant's costs of the notice of motion.

Orders

  • ['Dismiss the four notices of motion.' 'Dismiss any cross claims filed by the defendants in the proceedings against the Nominal Defendant.' "Order the defendant applicant to pay the respondent Nominal Defendant's costs of the notice of motion."]