Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Limited [2011] FCAFC 145

Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Limited [2011] FCAFC 145

The appeal was allowed because the appellant's claim could not properly be characterised as having no reasonable prospect of success. The earlier separate-question determination did not conclusively decide that turnover for a week could be calculated only by reference to invoices and credit notes issued in that week, nor did it finally determine the causal link required under the policies. The allocation of sums payable to particular weeks and the causal requirements of the business interruption policies raised difficult construction and factual issues that should be determined at trial, especially in a Fast Track proceeding without pleadings. It was therefore wrong to refuse leave to...

Jurisdiction
Australia
Judgment Date
18 November 2011
Procedural Posture
Appeal From Orders Refusing Leave to Amend, Granting Summary Judgment Under S 31 a of the Federal Court of Australia Act 1976 (cth), and Dismissing the Proceeding / Full Court Appeal by Leave
Outcome
Appeal allowed.
Legal Topics
['fast Track List' 'summary Judgment' 'leave to Amend' 'business Interruption Insurance' 'loss of Turnover' 'construction of Insurance Policy' 'separate Questions']
['practice and Procedure' 'insurance'] ['fast Track List' 'summary Judgment' 'leave to Amend' 'business Interruption Insurance' 'loss of Turnover' 'construction of Insurance Policy' 'separate Questions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From Orders Refusing Leave to Amend, Granting Summary Judgment Under S 31 a of the Federal Court of Australia Act 1976 (cth), and Dismissing the Proceeding / Full Court Appeal by Leave

Legal Issues

  1. 1 ['Whether the primary judge erred in refusing the appellant leave to file and serve a further amended claim.' 'Whether the primary judge erred in giving summary judgment against the appellant under s 31A of the Federal Court of Australia Act 1976 (Cth).' 'Whether the earlier determination of separate questions conclusively required weekly turnover to be calculated only by reference to invoices and credit notes issued in the relevant week.' "Whether the appellant's proposed claim failed because it did not plead a week-by-week causal link between interruption to its business and the claimed loss of turnover."]

Ratio Decidendi

The appeal was allowed because the appellant's claim could not properly be characterised as having no reasonable prospect of success. The earlier separate-question determination did not conclusively decide that turnover for a week could be calculated only by reference to invoices and credit notes issued in that week, nor did it finally determine the causal link required under the policies. The allocation of sums payable to particular weeks and the causal requirements of the business interruption policies raised difficult construction and factual issues that should be determined at trial, especially in a Fast Track proceeding without pleadings. It was therefore wrong to refuse leave to...

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'Orders 2 – 5 made on 8 February 2011 be set aside and in lieu thereof: the application brought by the respondent for summary judgment be dismissed with costs; the appellant have leave to amend its claim in the form of Annexure PM27 to the affidavit of Peter Moriarty sworn 5 November 2010,...