Bamford v Periloo Pty Limited [2010] NSWLC 33

Bamford v Periloo Pty Limited [2010] NSWLC 33

Although the hire contract between Petra Herling and Periloo Pty Ltd included a contract of liability insurance covering the property damage liability, and although the evidence established on the balance of probabilities that the collision resulted from the Second Defendant's negligence, the Plaintiff failed to prove that the Second Defendant had died or could not, after reasonable enquiry, be found. In particular, there was no evidence of investigation in Germany or of disproportionate cost justifying the absence of such investigation. The Plaintiff therefore could not rely on s 51 of the Insurance Contracts Act 1984 (Cth) to proceed solely against the insurer, and the claim against the...

Jurisdiction
Australia
Judgment Date
22 November 2010
Procedural Posture
Civil Money Claim for Motor Vehicle Property Damage Relying on S 51 of the Insurance Contracts Act 1984 (cth) / Judgment After Hearing
Outcome
Judgment for the Defendant.
Legal Topics
['insurance Contracts Act 1984 (cth), S 51' 'direct Claim Against Insurer' 'contract of Liability Insurance' 'reasonable Enquiry to Find Insured' 'hire Car Accident' 'property Damage']
['insurance' 'civil Procedure' 'motor Vehicle Negligence'] ['insurance Contracts Act 1984 (cth), S 51' 'direct Claim Against Insurer' 'contract of Liability Insurance' 'reasonable Enquiry to Find Insured' 'hire Car Accident' 'property Damage']

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Procedural Posture

Civil Money Claim for Motor Vehicle Property Damage Relying on S 51 of the Insurance Contracts Act 1984 (cth) / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the hire contract between Petra Herling and Periloo Pty Ltd was also a contract of liability insurance for the purposes of the Insurance Contracts Act 1984 (Cth).' 'Whether the phrase "is liable in damages to a person" in s 51(1)(a) required an antecedent judicial declaration of liability.' 'Whether the contract provided insurance cover in respect of the property damage liability arising from the collision.' 'Whether the Plaintiff had made reasonable enquiry to find Petra Herling for the purposes of s 51(1)(b).']

Ratio Decidendi

Although the hire contract between Petra Herling and Periloo Pty Ltd included a contract of liability insurance covering the property damage liability, and although the evidence established on the balance of probabilities that the collision resulted from the Second Defendant's negligence, the Plaintiff failed to prove that the Second Defendant had died or could not, after reasonable enquiry, be found. In particular, there was no evidence of investigation in Germany or of disproportionate cost justifying the absence of such investigation. The Plaintiff therefore could not rely on s 51 of the Insurance Contracts Act 1984 (Cth) to proceed solely against the insurer, and the claim against the...

Court Disposition

Judgment for the Defendant.

Orders

  • ['Judgment for the Defendant']