UNIVERSAL TAPE WHOLESALERS PTY LTD v AMP FIRE AND GENERAL INSURANCE CO LTD [1991] NSWCA 271

UNIVERSAL TAPE WHOLESALERS PTY LTD v AMP FIRE AND GENERAL INSURANCE CO LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MEAGHER and HANDLEY JJA 8 March 1991, 8 March 1991

[1991] NSWCA 271

APPEAL — COMPETENCY APPEAL — an appeal must challenge some order of the court in which the initial proceeding was heard rather than an element in the reasoning which produced the order — Commonwealth of Australia vy Bank of New South Wales [1950] AC 235 applied. APPEAL — competency should be challenged by motion (see Pt51 R17A) and a failure to do so may have consequences in costs.

Appeal dismissed — no order for costs.

Samuels JA ThiS is a somewhat curious appeal from orders made by Judge Flannery in the District Court. It is, I think, unnecessary to deal with the facts in any great detail. In short the plaintiff, the present appellant, sued on a policy of insurance claiming the value of goods which had been stolen, or at least lost, while being conveyed by truck from Sydney to Brisbane.

An ordinary summons was filed and claimed $100,000 damages, and the particulars in a schedule specified the precise sum which was claimed, namely, $59,878.

The action, which was commenced in May 1986, proceeded at a leisurely pace. Ultimately the plaintiff sought discovery from the defendant and, despite a number of letters, no documents were produced.

However, in March 1988 the defendant had brought money into court pursuant to Pt19 of the District Court Rules as they stood at the time. It would seem that the plaintiff took no immediate, or indeed prompt, steps to accept or reject the payment, until February 1989 when a motion came into court which was filed on 20 January 1989 seeking orders that the defendant should serve a verified list of documents. This motion was returned on 17 February 1989, and this brought the opponents face to face and produced some useful step forward in the litigation.