Nicol v Whiteoak [2011] NSWSC 168

Nicol v Whiteoak [2011] NSWSC 168

Section 48 of the Insurance Contracts Act 1984 does not confer on the plaintiff, who is not specified or referred to in the contract of insurance, a right to recover her loss from Club Marine Ltd. The application to add Club Marine Ltd as a defendant and claim under s 48 is misconceived and must be dismissed.

Parties
Plaintiff: Linda Nicol; First Defendant: Scott Murray Whiteoak (Executor of the estate of the late Steven Whiteoak); Second Defendant: Mohamed Mogharbel; Proposed Fourth Defendant: Club Marine Limited
Jurisdiction
Australia
Judgment Date
17 March 2011
Procedural Posture
Procedural and Other Rulings / Notice of Motion to Amend Statement of Claim and Join Fourth Defendant
Outcome
Plaintiff's notice of motion filed 14 December 2010 dismissed with costs
Legal Topics
Insurance Contracts Act 1984 S 48, Standing of Plaintiff to Claim Under Insurance Policy, Joinder of Insurer as Defendant
Insurance Law Insurance Contracts Act 1984 S 48 Standing of Plaintiff to Claim Under Insurance Policy Joinder of Insurer as Defendant

Case Brief

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Parties

Linda Nicol

Plaintiff

Scott Murray Whiteoak (Executor of the estate of the late Steven Whiteoak)

First Defendant

Mohamed Mogharbel

Second Defendant

Club Marine Limited

Proposed Fourth Defendant

Procedural Posture

Procedural and Other Rulings / Notice of Motion to Amend Statement of Claim and Join Fourth Defendant

Legal Issues

  1. 1 Whether s 48 of the Insurance Contracts Act 1984 extends to a plaintiff suing an insured
  2. 2 Whether the plaintiff is a person to whom the insurance cover provided by the contract extends

Ratio Decidendi

Section 48 of the Insurance Contracts Act 1984 does not confer on the plaintiff, who is not specified or referred to in the contract of insurance, a right to recover her loss from Club Marine Ltd. The application to add Club Marine Ltd as a defendant and claim under s 48 is misconceived and must be dismissed.

Court Disposition

Plaintiff's notice of motion filed 14 December 2010 dismissed with costs

Orders

  • Plaintiff's notice of motion filed 14 December 2010 dismissed with costs