Zaki v Better Buildings Constructions Pty Limited [2017] NSWSC 1522

Zaki v Better Buildings Constructions Pty Limited [2017] NSWSC 1522

Section 6(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) does not change the settled law: the onus remains on the insurer to prove that a claimant's claim against an insured person is out of time under the Limitation Act 1969 (NSW).

Parties
Plaintiff: Mr Silwan Georg Zaki; First Defendant: Better Buildings Constructions Pty Limited; Second Defendant: GIO General Pty Limited
Jurisdiction
Australia
Judgment Date
10 November 2017
Procedural Posture
Interlocutory Application / Determination of Separate Question Before Further Questions on Application for Leave to Proceed Against Insurer
Outcome
Application for determination of separate question granted; leave to plaintiff to bring proceedings against second defendant granted
Legal Topics
Limitation Periods, Leave to Proceed Against Insurer, Onus of Proof, Construction of Civil Liability (third Party Claims Against Insurers) Act 2017 (nsw)
Civil Procedure Insurance Law Limitation Periods Leave to Proceed Against Insurer Onus of Proof Construction of Civil Liability (third Party Claims Against Insurers) Act 2017 (nsw)

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Parties

Mr Silwan Georg Zaki

Plaintiff

Better Buildings Constructions Pty Limited

First Defendant

GIO General Pty Limited

Second Defendant

Procedural Posture

Interlocutory Application / Determination of Separate Question Before Further Questions on Application for Leave to Proceed Against Insurer

Legal Issues

  1. 1 Whether s 6(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) shifts the onus to the claimant to prove the claim is within time or leaves it on the insurer to prove it is out of time

Ratio Decidendi

Section 6(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) does not change the settled law: the onus remains on the insurer to prove that a claimant's claim against an insured person is out of time under the Limitation Act 1969 (NSW).

Court Disposition

Application for determination of separate question granted; leave to plaintiff to bring proceedings against second defendant granted

Orders

  • Order the legal question concerning the onus under s 6(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) be determined separately and before other questions arising on the application
  • Answer: Section 6(1) does not alter the general law; the onus lies upon the insurer to prove the claim is out of time under the Limitation Act 1969 (NSW)