COMINO v MERCANTILE MUTUAL INSURANCE (AUST) LTD [1997] NSWCA 73

COMINO v MERCANTILE MUTUAL INSURANCE (AUST) LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and HANDLEY JJA, and BROWNIE AJA 27 February 1997, 27 February 1997

[1997] NSWCA 73

INSURANCE — liability insurance — application by third party claimant for leave to proceed against insurer — Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s6

LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1946 (NSW) s6 — application for leave to proceed against insurer

In 1987 the appellants commenced proceedings in the Supreme Court against Mr Hunter claiming damages for faulty repairs to their trucks. In 1993 Mr Hunter became bankrupt and the appellants applied for leave to proceed against Hunter's insurer under s6 of the Law Reform (Miscellaneous) Provisions Act 1946 (NSW). The Master declined to grant leave, finding that the claims against the policy would fail because of certain exclusion clauses. The appellants appealed by leave.

HELD: (1) A final decision on the construction of the policy was not required when determining whether to grant leave to proceed. (2) There was an arguable case that the claims against the policy could be made out at trial.. (3) The appeal was allowed and leave to proceed granted.

Handley JA This is an appeal by leave of this Court granted on 8 July 1996 against a decision of Master Greenwood. The learned Master dismissed an application by the appellants for leave to commence proceedings against the respondent, Mercantile Mutual Insurance (Australia) Ltd which had issued a Business Pak policy in 1982. The policy covering Mr Ian Hunter, a truck repairer, was in force from 23 February 1983 to 19 January 1984. Proceedings brought by the appellants against Mr Hunter have been pending in the Supreme Court since 1987.

Mr Hunter became bankrupt early in 1993 and this led the appellants to commence proceedings under s6 of the Law Reform (Miscellaneous) Provisions Act 1946 for leave to bring an action against the insurer to enforce the charge created by s6 over the policy issued to Mr Hunter which they allege covered their claims against him.