ANTICO v CE HEATH CASUALTY AND GENERAL INSURANCE LTD and ANOR [NO 2] [1996] NSWCA 18

[1996] 38 NSWLR 681

ANTICO v CE HEATH CASUALTY AND GENERAL INSURANCE LTD and ANOR [NO 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and POWELL, JJA 18-19 October 1995, 5 February 1996 [1996] NSWCA 18

PRACTICE and PROCEDURE — variation of orders — cross appeal — costs — held — (by Maj) — cross appeal dismissed

Kirby P On 30 January 1996 the Court published reasons and pronounced orders in these proceedings.

In my reasons, I dealt with the issues argued, including in the cross appeal. However, I misled myself because the other judges did not embrace my reasoning on "notification". I did not provide orders to dispose of the cross appeal consistent with my reasons.

It follows from my reasons that the following additional orders should be made to dispose of the cross appeal which, I agree, is not disposed of by the previously announced orders in the appeal:

1. Cross appeal allowed;

2. The first cross respondent to pay the costs of the cross appeal;

3. Order that those parts of the decision of Giles CJ Comm D in which his Honour answered the questions set out in para2.2, paraS.2 and para5.4 of the Statement of Issues be set aside;

4. In place of the answers given by Giles CJ Comm D to the questions set out in para2.2, paraS.2 and paraS.4 of the Statement of Issues order that the following answers be given:

(a) Question: Whether the letter of 5 September 1990 from Heath Fielding to CE Heath constitutes notification of the facts asserted in the letter so as to require CE Heath to treat the claims made against Sir Tristan as having been made during the period of insurance under the Earlier Policy. Answer: Yes.

(b) Question: Whether Heath Fielding breached the implied terms of the retainer between it and Sir Tristan by failing to notify CE Heath of the Minter Ellison letter or by failing to advise Sir Tristan to do so. Answer: No.