Bogovic v Aon Hewitt Financial Advice Limited [2024] NSWSC 668

Bogovic v Aon Hewitt Financial Advice Limited [2024] NSWSC 668

The defendants did not establish to the high degree of certainty required for summary dismissal that the plaintiff suffered measurable economic loss more than six years before proceedings commenced. It was more than fairly arguable that the alleged inadequate TPD cover was a contingent or prospective loss, or a chance of loss, which matured into actual loss only when the policy conditions for the TPD benefit were satisfied. Because the limitation defence was not clearly made out, the proposed amendment was not futile and leave to amend was granted.

Jurisdiction
Australia
Judgment Date
31 May 2024
Procedural Posture
Professional Negligence Claim Against Insurance Brokers; Interlocutory Applications for Summary Dismissal and Leave to Amend / Procedural Ruling on Two Notices of Motion Filed on 20 March 2024
Outcome
Defendants' notice of motion for summary dismissal dismissed; plaintiff granted leave to file and serve an amended statement of claim; costs orders made.
Legal Topics
['summary Dismissal' 'amendment of Statement of Claim' 'statute Barred Negligence Claim' 'accrual of Cause of Action for Pure Economic Loss' 'total and Permanent Disablement Insurance' 'loss of a Chance and Chance of a Loss']
['civil Procedure' 'professional Negligence' 'limitation of Actions' 'insurance'] ['summary Dismissal' 'amendment of Statement of Claim' 'statute Barred Negligence Claim' 'accrual of Cause of Action for Pure Economic Loss' 'total and Permanent Disablement Insurance' 'loss of a Chance and Chance of a Loss']

Case Brief

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Procedural Posture

Professional Negligence Claim Against Insurance Brokers; Interlocutory Applications for Summary Dismissal and Leave to Amend / Procedural Ruling on Two Notices of Motion Filed on 20 March 2024

Legal Issues

  1. 1 ["Whether the defendants had established that the plaintiff's negligence claim was statute barred under s 14(1)(b) Limitation Act 1969 (NSW) so as to warrant summary dismissal under r 13.4 Uniform Civil Procedure Rules 2005 (NSW)." "Whether the plaintiff's proposed amended statement of claim should be refused as futile because the proceedings were statute barred." 'When measurable economic loss arguably first accrued in a professional negligence claim alleging inadequate TPD insurance cover arranged by insurance brokers.']

Ratio Decidendi

The defendants did not establish to the high degree of certainty required for summary dismissal that the plaintiff suffered measurable economic loss more than six years before proceedings commenced. It was more than fairly arguable that the alleged inadequate TPD cover was a contingent or prospective loss, or a chance of loss, which matured into actual loss only when the policy conditions for the TPD benefit were satisfied. Because the limitation defence was not clearly made out, the proposed amendment was not futile and leave to amend was granted.

Court Disposition

Defendants' notice of motion for summary dismissal dismissed; plaintiff granted leave to file and serve an amended statement of claim; costs orders made.

Orders

  • ['The defendants notice of motion filed on 20 March 2024 is dismissed.' 'The plaintiff is granted leave to file and serve an amended statement of claim in the form annexed to the affidavit of Patrick Williamson-Hill affirmed on 20 March 2024 in accordance with his notice of motion filed on 20 March 2024 by 4 pm on...