TPFL Limited (in liq) v SB Group Property Valuers and Consultants Pty Ltd (in liq) and ACE Insurance Limited [2012] NSWSC 853

TPFL Limited (in liq) v SB Group Property Valuers and Consultants Pty Ltd (in liq) and ACE Insurance Limited [2012] NSWSC 853

The cause of action pleaded against ACE under s 6(4) was a nullity because the plaintiff commenced it without first obtaining leave, and National Mutual remained binding. Fresh leave under s 6(4) was refused because the plaintiff did not show arguable claims against SB that could support the asserted charge: the Davron loss was completed only on settlement outside the policy period, and the fund loss claims were statute barred, merged in the earlier Huntley judgment, or otherwise not arguable. Joinder of ACE under r 6.19 to rely on s 562 of the Corporations Act was refused because, in the absence of arguable claims against SB, joinder would be futile.

Jurisdiction
Australia
Judgment Date
02 August 2012
Procedural Posture
Proceedings Seeking to Enforce a Statutory Charge on Insurance Moneys and Related Joinder Relief / Interlocutory Motions: Plaintiff's Amended Notice of Motion for Leave and Joinder; Second Defendant's Motion to Dismiss or Strike Out the Statement of Claim
Outcome
The statement of claim was dismissed and the plaintiff was ordered to pay the second defendant's costs.
Legal Topics
['statutory Charge on Insurance Moneys' 'leave to Commence Proceedings Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw)' 'nunc Pro Tunc Leave' 'joinder Under R 6.19 of the Uniform Civil Procedure Rules 2005' 'application of Insurance Proceeds Under S 562 of the Corporations Act' 'arguable Case Against Insured' 'limitation Period for Contract Claims' 'contribution Between Tortfeasors' 'misleading and Deceptive Conduct']
['insurance' 'practice and Procedure' 'corporations' 'limitation of Actions' 'trade Practices'] ['statutory Charge on Insurance Moneys' 'leave to Commence Proceedings Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw)' 'nunc Pro Tunc Leave' 'joinder Under R 6.19 of the Uniform Civil Procedure Rules 2005' 'application of Insurance Proceeds Under S 562 of the Corporations Act' 'arguable Case Against Insured' 'limitation Period for Contract Claims' 'contribution Between Tortfeasors' 'misleading and Deceptive Conduct']

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Procedural Posture

Proceedings Seeking to Enforce a Statutory Charge on Insurance Moneys and Related Joinder Relief / Interlocutory Motions: Plaintiff's Amended Notice of Motion for Leave and Joinder; Second Defendant's Motion to Dismiss or Strike Out the Statement of Claim

Legal Issues

  1. 1 ["Can the plaintiff's action against ACE pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) be maintained where leave was not obtained before commencement?" 'If not, should the Court grant leave to the plaintiff to bring an action against ACE pursuant to s 6(4)?' 'Should the Court grant leave pursuant to r 6.19 to join ACE so as to allow the plaintiff to rely upon s 562 of the Corporations Act?']

Ratio Decidendi

The cause of action pleaded against ACE under s 6(4) was a nullity because the plaintiff commenced it without first obtaining leave, and National Mutual remained binding. Fresh leave under s 6(4) was refused because the plaintiff did not show arguable claims against SB that could support the asserted charge: the Davron loss was completed only on settlement outside the policy period, and the fund loss claims were statute barred, merged in the earlier Huntley judgment, or otherwise not arguable. Joinder of ACE under r 6.19 to rely on s 562 of the Corporations Act was refused because, in the absence of arguable claims against SB, joinder would be futile.

Court Disposition

The statement of claim was dismissed and the plaintiff was ordered to pay the second defendant's costs.

Orders

  • ['The statement of claim is dismissed.' "The plaintiff is to pay the second defendant's costs."]