Orcher v Bowcliff Pty Ltd [2010] NSWSC 1346

Orcher v Bowcliff Pty Ltd [2010] NSWSC 1346

Applications to join QBE Insurance (Australia) Limited as a defendant should be dismissed because entry of judgment in its favour on the cross-claim, by consent and with participation or acquiescence of the parties, establishes that QBE is not liable in respect of the relevant damage. James Hardie v Seltsam confirms such a party is no longer a tortfeasor amenable to contribution proceedings under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.

Jurisdiction
Australia
Judgment Date
23 November 2010
Procedural Posture
Civil / Ruling on Application to Join QBE Insurance (australia) Limited as a Defendant
Outcome
Applications to join QBE are dismissed with costs.
Legal Topics
['application to Join Party' 'contribution Between Tortfeasors' 'insurance Proceeds Claim' 'consent Judgments']
['practice and Procedure'] ['application to Join Party' 'contribution Between Tortfeasors' 'insurance Proceeds Claim' 'consent Judgments']

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Procedural Posture

Civil / Ruling on Application to Join QBE Insurance (australia) Limited as a Defendant

Legal Issues

  1. 1 ['Whether QBE Insurance (Australia) Limited can be joined as a defendant by plaintiff and first defendant pursuant to s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 after consent judgment was entered on cross-claim' "Whether QBE remains a tortfeasor 'who is, or would if sued have been, liable in respect of the same damage' within s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 after judgment entered in its favour"]

Ratio Decidendi

Applications to join QBE Insurance (Australia) Limited as a defendant should be dismissed because entry of judgment in its favour on the cross-claim, by consent and with participation or acquiescence of the parties, establishes that QBE is not liable in respect of the relevant damage. James Hardie v Seltsam confirms such a party is no longer a tortfeasor amenable to contribution proceedings under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.

Court Disposition

Applications to join QBE are dismissed with costs.

Orders

  • ["Plaintiff and first defendant's applications to join QBE Insurance (Australia) Limited dismissed with costs."]