LUMLEY GENERAL INSURANCE LIMITED v THE COUNCIL OF PENRITH [1997] NSWCA 191

LUMLEY GENERAL INSURANCE LIMITED v THE COUNCIL OF PENRITH

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA and BEAZLEY JA 17 February, 9 May 1997

[1997] NSWCA 191

Priestley JA and Beazley JA. The court reserved its decision in this application for leave to appeal because of the desirability of reading carefully those of its own decisions which counsel said were causing difficulty to first instance judges. Consideration of those decisions and their application to the present case led the court to seek assistance from counsel on some questions raised by the instant case additional to those argued orally before the court. Counsel's written responses were helpful and enable the court to come to the view that leave to appeal should be granted.

The written questions to counsel, and their answers, should remain with the papers in case they may be of assistance to the judges of the court who hear the appeal when they are doing their preliminary reading.

Counsel for the claimant said if leave to appeal were granted there would be no opposition to the filing of a cross appeal by the opponent, if the opponent considered it appropriate to do so. We have therefore not had toconsider whether a cross appeal by the opponent would require and attract leave.

Leave to appeal is granted to the claimant, and to cross appeal to the opponent; costs of the summons are to be costs in the appeal.

Orders accordingly.

Counsel for the claimant: G M WATSON

Solicitors for the claimant: PHILLIPS FOX

Counsel for the opponent: S G CAMPBELL

Solicitors for the opponent: CURWOOD and PARTNERS