Willis v Smith & 2 Ors [2002] NSWSC 465

Willis v Smith & 2 Ors [2002] NSWSC 465

The plaintiff's alleged damages depended on first obtaining judgment against Multitech and then being unable to enforce that judgment because of the absence of common law extension insurance cover. Those damages had not crystallised and remained hypothetical because the earlier personal injury proceedings had not been heard and payment by remaining defendants could mean the plaintiff suffered no financial loss. The facts necessary to complete the pleaded cause of action had not arisen, so the cause of action was inchoate and the claim was hopeless, warranting dismissal of the statement of claim.

Jurisdiction
Australia
Judgment Date
29 May 2002
Procedural Posture
Summary Judgment Application in Negligence Proceedings / Defendants' Notices of Motion Seeking Dismissal of the Statement of Claim Pursuant to Part 13 R 5 of the Supreme Court Rules
Outcome
The statement of claim was dismissed and the plaintiff was ordered to pay the defendants' costs.
Legal Topics
['summary Dismissal' 'inchoate Cause of Action' 'workers Compensation Insurance' 'common Law Extension Insurance Cover' 'economic Loss']
['civil Procedure' 'negligence' 'insurance'] ['summary Dismissal' 'inchoate Cause of Action' 'workers Compensation Insurance' 'common Law Extension Insurance Cover' 'economic Loss']

Case Brief

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Procedural Posture

Summary Judgment Application in Negligence Proceedings / Defendants' Notices of Motion Seeking Dismissal of the Statement of Claim Pursuant to Part 13 R 5 of the Supreme Court Rules

Legal Issues

  1. 1 ['Whether the statement of claim should be dismissed under Part 13 r 5 of the Supreme Court Rules because no reasonable cause of action was disclosed, the proceedings were frivolous or vexatious, or the proceedings were an abuse of process.' "Whether the plaintiff's cause of action was inchoate because his alleged damages depended on the outcome of earlier personal injury proceedings and the inability of Multitech to satisfy any judgment." 'Whether the defendants owed the plaintiff a duty of care in relation to economic loss arising from the alleged absence of common law extension insurance cover.']

Ratio Decidendi

The plaintiff's alleged damages depended on first obtaining judgment against Multitech and then being unable to enforce that judgment because of the absence of common law extension insurance cover. Those damages had not crystallised and remained hypothetical because the earlier personal injury proceedings had not been heard and payment by remaining defendants could mean the plaintiff suffered no financial loss. The facts necessary to complete the pleaded cause of action had not arisen, so the cause of action was inchoate and the claim was hopeless, warranting dismissal of the statement of claim.

Court Disposition

The statement of claim was dismissed and the plaintiff was ordered to pay the defendants' costs.

Orders

  • ['The statement of claim is dismissed.' "The plaintiff is to pay the defendants' costs."]