Sharma v Soar Aviation Aircraft Holdings Pty Ltd & Anor [2024] NSWDC 567

District Court New South Wales

Medium Neutral Citation: Sharma v Soar Aviation Aircraft Holdings Pty Ltd & Anor [2024] NSWDC 567 Hearing dates: 15 November 2024 Date of orders: 29 November 2024 Decision date: 29 November 2024 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Grant leave pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to join Certain Underwriters at Lloyd's of London as the third defendant to these proceedings. (2) Grant leave to the plaintiffs to discontinue these proceedings against the first defendant and the second defendant, with no order as to costs between those parties. (3) Grant leave to the plaintiffs to file an Amended Statement of Claim which: (a) Reflects the order above for the joinder of Certain Underwriters at Lloyd's of London as a third defendant. (b) Reflects the discontinuance of the proceedings against the first and second defendants. (c) Adds an alternative claim based upon breach of duty of care. (4) Order that the costs of and incidental to the Amended Notice of Motion be costs in the cause. Catchwords: CIVIL PROCEDURE – parties – leave to join insurer as a defendant – arguable case against holder of insurance policy – arguable case that the liability of the policy holder is an insured liability CIVIL PROCEDURE – pleadings – leave to plead alternative claim in negligence – not futile to plead alternative cause of action for breach of duty Legislation Cited: Civil Aviation (Carriers' Liability) Act 1959 (Cth) Pt IV, ss 27, 28, 31, 35 Civil Aviation (Carriers' Liability) Act 1967 (NSW) Civil Liability Act 2002 (NSW) s 5L Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss 4, 5 Cases Cited: Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 Avant Insurance Ltd v Burnie [2021] NSWCA 272 Campbell v Hay [2014] NSWCA 129 Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 Jones v Airlines of Tasmania Pty Ltd (unreported), Supreme Court of Tasmania, Wood J, 5 October 2023, File Number 3737/2016 Mrdajl v Southern Cross Constructions (NSW) Pty Ltd (In Liq) [2018] NSWSC 161 Parkes Shire Council v South West Helicopters Pty Ltd [2019] HCA 14; (2019) 266 CLR 212 Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438 Category: Procedural rulings Parties: Nandini Sharma (First Plaintiff) Rajneesh Sharma (Second Plaintiff) Shivank Sharma (Third Plaintiff) Soar Aviation Aircraft Holdings Pty Ltd (First Defendant) Gobel Aviation Pty Ltd trading as Soar Advanced Flight Training (Second Defendant) Certain Underwriters at Lloyd's of London (Respondent to Plaintiffs' Amended Notice of Motion) Representation: Counsel: R Royle (Plaintiffs) M Kalyk (Respondent)