Dopudj v FDC Construction and Fitout Pty Limited & Ors [2023] NSWSC 110

Dopudj v FDC Construction and Fitout Pty Limited & Ors [2023] NSWSC 110

The Court determined that GIO has not established its entitlement to disclaim liability within the meaning of s 5(4) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), as the evidence did not demonstrate fraudulent non-disclosure. There was insufficient evidence to conclude that joinder of GIO is futile on limitation or estoppel grounds. Leave to join GIO as a defendant and cross-defendant is granted.

Jurisdiction
Australia
Judgment Date
31 January 2023
Procedural Posture
Personal Injury Claim (civil) / Procedural Rulings on Joinder of Insurer, Leave to Rely on Expert Evidence, Costs, and Interlocutory Orders
Outcome
Leave granted to join AAI Limited trading as GIO Insurance as a defendant and cross-defendant; interlocutory orders made regarding expert evidence and proceedings; costs orders made against GIO for particular motions.
Legal Topics
['addition of Defendant' 'joinder of Insurer' 'personal Injury' 'limitation Period' 'non Disclosure (insurance)' 'estoppel']
['civil Procedure'] ['addition of Defendant' 'joinder of Insurer' 'personal Injury' 'limitation Period' 'non Disclosure (insurance)' 'estoppel']

Case Brief

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Procedural Posture

Personal Injury Claim (civil) / Procedural Rulings on Joinder of Insurer, Leave to Rely on Expert Evidence, Costs, and Interlocutory Orders

Legal Issues

  1. 1 ['Whether leave should be granted to join AAI Limited trading as GIO Insurance as a defendant under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) s 4' 'Whether GIO is entitled to disclaim liability based on non-disclosure or fraudulent misrepresentation under Insurance Contracts Act 1984 (Cth) s 28(2) or s 28(3)' 'Whether claims against GIO are statute-barred by the Limitation Act 1969 (NSW) ss 50C, 50D' 'Whether issue estoppel or Anshun estoppel precludes joinder of GIO']

Ratio Decidendi

The Court determined that GIO has not established its entitlement to disclaim liability within the meaning of s 5(4) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), as the evidence did not demonstrate fraudulent non-disclosure. There was insufficient evidence to conclude that joinder of GIO is futile on limitation or estoppel grounds. Leave to join GIO as a defendant and cross-defendant is granted.

Court Disposition

Leave granted to join AAI Limited trading as GIO Insurance as a defendant and cross-defendant; interlocutory orders made regarding expert evidence and proceedings; costs orders made against GIO for particular motions.

Orders

  • ['The third defendant is granted leave to rely on the report of John McFarlane dated 6 December 2022.' 'The plaintiff is entitled to rely on the report served in response of Mr Kevin Heathcote.' 'Each party pay their own costs of the Motion.' 'Mr McFarlane, Dr Keven Heathcote and Mr George Dahrie to participate in a...