Frewin v Emmdale Sports Club Incorporated & Anor [2005] NSWSC 966

Frewin v Emmdale Sports Club Incorporated & Anor [2005] NSWSC 966

There was a common intention between the parties to exclude participants from insurance cover; the relevant correspondence was incorporated into the policy, and there is no inconsistency or ambiguity. The answer to whether the second defendant is liable to indemnify the first defendant for the plaintiff's injury is negative.

Parties
Plaintiff: Robert John Frewin; First Defendant: Emmdale Sports Club Incorporated; Second Defendant: GIO General Limited
Jurisdiction
Australia
Judgment Date
30 September 2005
Procedural Posture
Civil / Judgment on Separate Questions (construction of Policy and Rectification)
Outcome
The separate question is answered in the negative. Declaration in terms of 6(b) of the cross-claim. Costs reserved. Exhibit may be returned.
Legal Topics
Policy Construction, Rectification, Public Liability, Participant Exclusion, Contractual Intention
Insurance Law Policy Construction Rectification Public Liability Participant Exclusion Contractual Intention

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Parties

Robert John Frewin

Plaintiff

Emmdale Sports Club Incorporated

First Defendant

GIO General Limited

Second Defendant

Procedural Posture

Civil / Judgment on Separate Questions (construction of Policy and Rectification)

Legal Issues

  1. 1 Whether the policy covers participants in the gymkhana
  2. 2 Whether the policy should be rectified to reflect exclusion of participants

Ratio Decidendi

There was a common intention between the parties to exclude participants from insurance cover; the relevant correspondence was incorporated into the policy, and there is no inconsistency or ambiguity. The answer to whether the second defendant is liable to indemnify the first defendant for the plaintiff's injury is negative.

Court Disposition

The separate question is answered in the negative. Declaration in terms of 6(b) of the cross-claim. Costs reserved. Exhibit may be returned.

Orders

  • The separate question set forth in schedule A to the notice of motion filed on 14 March 2005 is answered in the negative.
  • A declaration is made in terms of 6(b) of the cross-claim.