Gilmore v The Trustee for Australia 3x3 Hustle Discretionary Trust trading as 3x3 Hustle [2023] NSWSC 1328

Supreme Court New South Wales

Medium Neutral Citation: Gilmore v The Trustee for Australia 3x3 Hustle Discretionary Trust trading as 3x3 Hustle [2023] NSWSC 1328 Hearing dates: On the papers Date of orders: 7 November 2023 Decision date: 07 November 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) The Hearing on 3 November 2023 be vacated. (2) Leave is granted for Berkley Insurance Company trading as Berkley Insurance Australia (Berkley) to be joined to the proceedings pursuant to section 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). (3) The Plaintiff is granted leave to file an Amended Statement of Claim to give effect to order 2 by 10 November 2023. (4) Plaintiff's and Berkley's costs of the Notice of Motion dated 22 May 2023 (Motion) are costs in the cause. (5) Defendant's costs of the Motion are reserved. Catchwords: CIVIL PROCEDURE – third party claims against insurer – where plaintiff suffered injury at tournament of a modified form of basketball– where corporate tournament host no longer registered and there is no prospect of recovery from it – leave sought for plaintiff to proceed against tournament host's insurer – application not opposed by defendant – no prospect of recovery from tournament host – parties agree that it is arguable that insurer may be liable for injuries suffered by the plaintiff on proper construction of the tournament host's insurance policy despite the insurer's advised view – leave granted Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss 4, 5 Cases Cited: Cobie Ann Moore v Richard McKiernan [2017] NSWSC 1520 Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82; (1986) 161 CLR 500 Murphy, McCarthy & Associates Pty Ltd v Zurich Australian Insurance Ltd [2018] NSWSC 627 Selected Seeds Pty Ltd v QBEMM Pty Limited [2010] HCA 37; (2010) 242 CLR 336 Wigge v Allianz Australia Insurance Ltd [2020] NSWSC 150 Zaki v Better Buildings Constructions Pty Ltd [2017] NSWSC 1522 Category: Principal judgment Parties: Kayne Gilmore (Plaintiff) The Trustee for Australia 3x3 Hustle Discretionary Trust (Defendant) Representation: Counsel: