SUN ALLIANCE AUSTRALIA LTD v MOULDS [1997] NSWCA 300

SUN ALLIANCE AUSTRALIA LTD v MOULDS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER and BEAZLEY JJA, and DUNFORD AJA 26 February 1997, 7 April 1997 [1997] NSWCA 300

DISTRICT COURT — arbitrator's award — judgment thereon — application to set aside and file application for re-hearing out of time — relevant considerations — District Court Act 1973 s63A(5) — District Court Rules Pt31 r12A(1), Pt51A r10,r11 — Arbitration (Civil Claims) Act 1983 s18(2).

The respondent sued the appellant in the District Court for indemnity under an insurance policy, the appellant's defence being one of material non-disclosure. The action was referred to arbitration, the arbitrator found for the appellant, and no application for rehearing having been filed within the prescribed time, the award was deemed to be a judgment of the Court. In correspondence and in his evidence before the arbitrator, the respondent referred to H as an insurance broker acting on his behalf. Subsequently the respondent commenced a further action against H alleging breach of contract and negligence in the performance of his duties as the respondent's insurance broker and agent, but H defended the proceedings on the ground that he was not an insurance broker and had not had any contractual relationship with the respondent.

The respondent then, two and a half years after the arbitrator's award, applied for orders that the judgment in the earlier proceedings flowing from the arbitrator's award be set aside and that he have leave to file an application for rehearing out of time. The judge considered, inter alia, that the respondent should have the judgment set aside if it was based on a false premise as regards H's role, considered where the greater hardship lay and made an order staying the "judgment of the arbitrator" and providing that, dependent on the outcome of certain of certain issues in the later proceedings, the judgment in the earlier proceedings should be set aside and the respondent have leave to file an application for re-hearing. The appellant appealed.