Wrigley v Axis Specialty Europe Limited [2013] NSWSC 30

Wrigley v Axis Specialty Europe Limited [2013] NSWSC 30

The order for separate and prior determination should be revoked because answering the questions would require the Court to apply law to assumed facts that were neither agreed nor found, including assumptions extending beyond the proposed pleading, so the process raised not merely a question of utility but a fundamental problem as to the exercise of judicial power. Leave to amend was appropriate in principle, but only subject to the defendant producing a properly formulated amendment pleading material facts as to payment and distribution.

Jurisdiction
Australia
Judgment Date
01 February 2013
Procedural Posture
Equity Division Commercial List Procedural Ruling / Consideration of Separate and Prior Determination of Questions Under UCPR R 28.2 and Proposed Amendment to the Defendant's Commercial List Response
Outcome
Order for separate and prior determination revoked; leave to amend indicated in principle, with directions made.
Legal Topics
['preliminary Questions' 'judicial Power' 'assumed Facts' 'separate Determination of Questions' 'law Reform (miscellaneous Provisions) Act 1946 (nsw) S 6' 'deed of Company Arrangement' 'leave to Amend']
['practice and Procedure' 'insurance' 'corporations Law'] ['preliminary Questions' 'judicial Power' 'assumed Facts' 'separate Determination of Questions' 'law Reform (miscellaneous Provisions) Act 1946 (nsw) S 6' 'deed of Company Arrangement' 'leave to Amend']

Case Brief

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Procedural Posture

Equity Division Commercial List Procedural Ruling / Consideration of Separate and Prior Determination of Questions Under UCPR R 28.2 and Proposed Amendment to the Defendant's Commercial List Response

Legal Issues

  1. 1 ['Whether the Court should determine separate questions based on assumptions rather than facts agreed or found.' 'Whether the deed of company arrangement could give Prosperity a right on which the insurer may rely under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).' 'Whether the defendant should be permitted in principle to amend its commercial list response to plead defences arising from the deed, payment and distribution.']

Ratio Decidendi

The order for separate and prior determination should be revoked because answering the questions would require the Court to apply law to assumed facts that were neither agreed nor found, including assumptions extending beyond the proposed pleading, so the process raised not merely a question of utility but a fundamental problem as to the exercise of judicial power. Leave to amend was appropriate in principle, but only subject to the defendant producing a properly formulated amendment pleading material facts as to payment and distribution.

Court Disposition

Order for separate and prior determination revoked; leave to amend indicated in principle, with directions made.

Orders

  • ['Revoke the order made on 23 November 2012 for the separate and prior determination, pursuant to UCPR r 28.2, of the questions then stated.' 'Direct the defendant to submit its proposed amended commercial list response to the plaintiff within 7 days.' 'Stand the matter over to the directions list on 15 February...