Azmin Firoz Daya v CNA Reinsurance Co Ltd & Ors [2004] NSWSC 795

Azmin Firoz Daya v CNA Reinsurance Co Ltd & Ors [2004] NSWSC 795

The Court ordered compulsory mediation because the indemnity and avoidance proceedings were inextricably linked to the large Ingot proceedings already ordered to mediation, the insurers had sufficient knowledge of the substance and ambit of the dispute through prior correspondence, access to material and the closing pleadings, the potential scale and cost of the related litigation made concurrent mediation a significant positive consideration, and the order advanced the overriding purpose of just, quick and cheap resolution despite the defendants' opposition.

Jurisdiction
Australia
Judgment Date
27 August 2004
Procedural Posture
Commercial List Insurance Indemnity and Avoidance Proceedings / Amended Notice of Motion by the Plaintiff for an Order Under Section 110 K of the Supreme Court Act Referring the Proceedings to Mediation Concurrently With Mediation in Proceedings Number 50169 of 2001
Outcome
Order made for compulsory mediation.
Legal Topics
['compulsory Mediation' 'mediation in Good Faith' 'overriding Purpose of Supreme Court Rules' 'director and Officer Insurance' 'insurance Avoidance' 'concurrent Mediation']
['civil Procedure' 'commercial Litigation' 'insurance'] ['compulsory Mediation' 'mediation in Good Faith' 'overriding Purpose of Supreme Court Rules' 'director and Officer Insurance' 'insurance Avoidance' 'concurrent Mediation']

Case Brief

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Procedural Posture

Commercial List Insurance Indemnity and Avoidance Proceedings / Amended Notice of Motion by the Plaintiff for an Order Under Section 110 K of the Supreme Court Act Referring the Proceedings to Mediation Concurrently With Mediation in Proceedings Number 50169 of 2001

Legal Issues

  1. 1 ['Whether the Court should exercise its discretion under section 110K of the Supreme Court Act to order mediation where the defendants did not consent.' 'Whether these proceedings should be mediated concurrently with the mediation already ordered in the Ingot proceedings.' "Whether the early stage of the proceedings, absence of discovery and defendants' opposition made mediation premature or inappropriate." 'Whether ordering mediation would further the just, quick and cheap resolution of the real issues in the proceedings.']

Ratio Decidendi

The Court ordered compulsory mediation because the indemnity and avoidance proceedings were inextricably linked to the large Ingot proceedings already ordered to mediation, the insurers had sufficient knowledge of the substance and ambit of the dispute through prior correspondence, access to material and the closing pleadings, the potential scale and cost of the related litigation made concurrent mediation a significant positive consideration, and the order advanced the overriding purpose of just, quick and cheap resolution despite the defendants' opposition.

Court Disposition

Order made for compulsory mediation.

Orders

  • ['Order pursuant to section 110 of the Supreme Court Act that these proceedings be referred to mediation and that such mediation occur concurrently with the mediation to take place before the Honourable G E Fitzgerald QC on 7 to 9 September 2004 in proceedings 50169 of 2001.' "Order that the defendants pay the...