CGU Insurance Ltd v Bazem Pty Ltd [2011] NSWCA 81

CGU Insurance Ltd v Bazem Pty Ltd [2011] NSWCA 81

The primary judge had power to grant leave to join the insurer as a defendant under UCPR r 6.19 because there were common questions of law and fact, and the claims arose out of the same transaction or series of transactions; the Court's power was not limited by the presence or absence of insolvency or priority issues, and the exercise of discretion was open in these circumstances. The primary judge erred in awarding costs to the Insurer for the joinder application where there was no prejudice caused to the Insurer by the timing of the application.

Parties
Appellant: CGU Insurance Ltd; First Respondent: Bazem Pty Ltd; Second Respondent: Bureau of Urban Architecture Pty Ltd
Jurisdiction
Australia
Judgment Date
07 April 2011
Procedural Posture
Application for Leave to Appeal and Cross Appeal / Court of Appeal Determination of Leave Applications
Outcome
Application for leave to appeal dismissed with costs; cross-appeal allowed.
Legal Topics
Joinder of Parties, Declaratory Relief, Costs Orders, Power to Grant Leave to Join Insurer as Defendant, Interpretation of Uniform Civil Procedure Rules R 6.19
Civil Procedure Insurance Law Joinder of Parties Declaratory Relief Costs Orders Power to Grant Leave to Join Insurer as Defendant Interpretation of Uniform Civil Procedure Rules R 6.19

Case Brief

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Parties

CGU Insurance Ltd

Appellant

Bazem Pty Ltd

First Respondent

Bureau of Urban Architecture Pty Ltd

Second Respondent

Procedural Posture

Application for Leave to Appeal and Cross Appeal / Court of Appeal Determination of Leave Applications

Legal Issues

  1. 1 Whether the primary judge had power under Uniform Civil Procedure Rules r 6.19 to grant leave to join insurer as defendant
  2. 2 Whether common question of law or fact and same transaction or series of transactions existed between claims against Architect and Insurer
  3. 3 Whether the court's power to grant leave under r 6.19(1) is confined by particular factual circumstances (such as insolvency or priority)

Ratio Decidendi

The primary judge had power to grant leave to join the insurer as a defendant under UCPR r 6.19 because there were common questions of law and fact, and the claims arose out of the same transaction or series of transactions; the Court's power was not limited by the presence or absence of insolvency or priority issues, and the exercise of discretion was open in these circumstances. The primary judge erred in awarding costs to the Insurer for the joinder application where there was no prejudice caused to the Insurer by the timing of the application.

Court Disposition

Application for leave to appeal dismissed with costs; cross-appeal allowed.

Orders

  • Leave to appeal is dismissed with costs.
  • Grant leave to Bazem Pty Ltd to cross-appeal.