Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213

Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213

Leave to appeal against the refusal to grant leave to file the proposed Third Cross-Claim was granted because the primary judge applied incorrect principles in part. However, the appeal was dismissed because there was no arguable case, based on the evidence, that the insured (Manufacturing) was the manufacturer or deemed manufacturer of the machine at the relevant time (being after its incorporation), and no basis that Vero insured Equipment as its subsidiary or under its policy. Thus, the threshold requirements for joining the insurer under s 6(4) were not satisfied.

Parties
First Appellant: Energize Fitness Pty Ltd; Second Appellant: Belrose Wellness Centre Pty Ltd; Respondent: Vero Insurance Limited
Jurisdiction
Australia
Judgment Date
19 July 2012
Procedural Posture
Appeal / Application for Leave to Appeal and Appeal From Refusal of Primary Judge to Grant Leave to Join Insurer as Cross Defendant
Outcome
Leave to appeal regarding the refusal to grant leave to file the proposed Third Cross-Claim granted; appeal dismissed with costs; summons seeking leave to appeal otherwise dismissed with costs.
Legal Topics
Joinder of Parties, Leave to Join Insurer, Law Reform (miscellaneous Provisions) Act 1946 S 6, Requirement of Arguable Case, Test for Joiner of Insurer
Civil Procedure Insurance Law Joinder of Parties Leave to Join Insurer Law Reform (miscellaneous Provisions) Act 1946 S 6 Requirement of Arguable Case Test for Joiner of Insurer

Case Brief

Summary, issues, holding and outcome

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Parties

Energize Fitness Pty Ltd

First Appellant

Belrose Wellness Centre Pty Ltd

Second Appellant

Vero Insurance Limited

Respondent

Procedural Posture

Appeal / Application for Leave to Appeal and Appeal From Refusal of Primary Judge to Grant Leave to Join Insurer as Cross Defendant

Legal Issues

  1. 1 Whether there was an arguable case against the manufacturer or its insurer for the purposes of joining the insurer under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946
  2. 2 Whether the primary judge erred in applying the test for leave to join an insurer
  3. 3 Whether the primary judge correctly considered both the pleadings and evidence in determining if there was an arguable case

Ratio Decidendi

Leave to appeal against the refusal to grant leave to file the proposed Third Cross-Claim was granted because the primary judge applied incorrect principles in part. However, the appeal was dismissed because there was no arguable case, based on the evidence, that the insured (Manufacturing) was the manufacturer or deemed manufacturer of the machine at the relevant time (being after its incorporation), and no basis that Vero insured Equipment as its subsidiary or under its policy. Thus, the threshold requirements for joining the insurer under s 6(4) were not satisfied.

Court Disposition

Leave to appeal regarding the refusal to grant leave to file the proposed Third Cross-Claim granted; appeal dismissed with costs; summons seeking leave to appeal otherwise dismissed with costs.

Orders

  • Grant leave to appeal against the refusal of the primary judge to grant leave to file the proposed Third Cross-Claim.
  • Direct that a notice of appeal, in substantially the form contained in the White Book but modified to relate only to the primary judge's decision to refuse leave concerning the Proposed Third Cross Claim, be filed within 14 days of the date of these orders.