Genders v Ajax Insurance Co Ltd [1950] HCA 47

High Court of Australia Dixon, McTiernan, Williams, Webb and Kitto JJ. Genders v Ajax Insurance Co Ltd [1950] HCA 47

ORDER Appeal allowed with costs. Order of Supreme Court discharged. In lieu thereof judgment for the plaintiff in demurrer upon the third plea with costs of both demurrers.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 20 Dixon, McTiernan, Williams, Webb and Kitto JJ.

This is an appeal from a decision of the Supreme Court of New South Wales given upon two demurrers. The first is a demurrer to the third plea to the declaration and the second demurrer is to a replication to the third plea. The action is brought by an insured against an insurer to recover the amount of an indemnity for the risk insured against. The policy declared upon is one issued for the purposes of the Motor Vehicles (Third Party Insurance) Act 1942 in relation to any motor vehicle to which a specified trader's plate is affixed, whether with or without the authority of the owner. The declaration alleges in effect that the plaintiff incurred a liability in respect of the death of a third party caused by or arising out of the use of a certain motor vehicle to which was affixed the trader's plate specified in the policy and that judgments were recovered against the plaintiff in actions brought in respect of the death of such third party. By the plea demurred to the defendant set out the policy of insurance declared upon and then averred that at all material times the certain motor vehicle in the declaration mentioned was owned by the Commonwealth of Australia within the meaning of the Motor Vehicles (Third Party Insurance) Act 1942. The substantial purpose of this plea and of the demurrer to it appears to have been to raise the question whether the fact that the motor vehicle was owned by the Commonwealth of Australia took the case outside the third party risks against which the policy of insurance insured the plaintiff. That is the question which the Supreme Court decided, and the decision, following Helme v. Fox [1] , was that because the general property in the motor vehicle was alleged to be in the Commonwealth of Australia the case fell outside the Motor Vehicles (Third Party Insurance) Act 1942 and the policy effected in pursuance of its provisions.