The Owners - Strata Plan 50530 v Walter Construction & Ors [2006] NSWSC 552

The Owners - Strata Plan 50530 v Walter Construction & Ors [2006] NSWSC 552

Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 does not apply to a 'claims made and notified' policy where the cause of action, including loss, accrued before policy inception; the unlimited retroactive cover did not alter this conclusion. The authorities, particularly Manettas and subsequent NSW decisions, establish that no charge arises in these circumstances and therefore leave to join the insurer is refused.

Jurisdiction
Australia
Judgment Date
25 May 2006
Procedural Posture
Interlocutory (application for Leave and Joinder) / Application for Leave to Commence Proceedings Against Insurer and Joinder
Outcome
Application dismissed as against fourth respondent (QBE); leave granted to proceed against first defendant (Walter Construction), on condition.
Legal Topics
['section 6 Law Reform (miscellaneous Provisions) Act 1946' 'claims Made and Notified Insurance Policies' 'joinder of Insurer' 'accrual of Cause of Action for Latent Defects' 'leave to Proceed Against Party in Liquidation']
['insurance Law' 'building and Construction Law'] ['section 6 Law Reform (miscellaneous Provisions) Act 1946' 'claims Made and Notified Insurance Policies' 'joinder of Insurer' 'accrual of Cause of Action for Latent Defects' 'leave to Proceed Against Party in Liquidation']

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Procedural Posture

Interlocutory (application for Leave and Joinder) / Application for Leave to Commence Proceedings Against Insurer and Joinder

Legal Issues

  1. 1 ["Whether QBE, as insurer under a 'claims made and notified' policy, should be joined pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 given that the cause of action accrued before the inception of the policy." "Whether the existence of 'unlimited retroactive cover' in the policy changes the application of s 6." 'Whether these issues should be determined at the interlocutory stage or reserved for trial.']

Ratio Decidendi

Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 does not apply to a 'claims made and notified' policy where the cause of action, including loss, accrued before policy inception; the unlimited retroactive cover did not alter this conclusion. The authorities, particularly Manettas and subsequent NSW decisions, establish that no charge arises in these circumstances and therefore leave to join the insurer is refused.

Court Disposition

Application dismissed as against fourth respondent (QBE); leave granted to proceed against first defendant (Walter Construction), on condition.

Orders

  • ['Grant plaintiff leave to proceed against first defendant, conditional upon any judgment not being enforced without further leave of Court.' 'Proceedings stood into Directions List on 23 June 2006.' 'Dismiss amended notice of motion as against fourth respondent (QBE).' "Plaintiff to pay fourth respondent's costs of...