Ronald Edward & Odetta Medich v Finn Foster & Associates Pty Limited [2006] NSWDC 110

New South Wales District Court

CITATION: Ronald Edward & Odetta Medich v Finn Foster & Associates Pty Limited [2006] NSWDC 110

HEARING DATE(S): 7 November 2006

JUDGMENT DATE: 9 November 2006

JUDGMENT OF: Rolfe DCJ

DECISION: Motion Dismissed; Defendant to pay the Plaintiffs' costs of the Notice of Motion, such costs to be agreed or assessed on the ordinary basis and, upon agreement or assessment, to be paid within one month.

CATCHWORDS: Application by Defendant for leave to plead Defence of abuse of process - Defendant previously unsuccessful in applying to the Court to strike out Plaintiff's claim as an abuse of process - Leave to amend refused on the basis that it was no more than an attempt to re-litigate an issue already decided by the Court.

LEGISLATION CITED: Trade Practices Act 1974 Uniform Civil Procedure Rules

Brimson v Rocla Concrete Pipes Ltd (1982) 2NSWLR 937 CASES CITED: Wentworth v Rogers (unreported) NSW SC 28/4/95 Haines v ABC (1995) 43 NSWLR 404 at 410B & 411 C-F

PARTIES: Ronald Edward & Odetta Medich (Plaintiffs) Finn Foster & Associates Pty Limited (Defendant)

FILE NUMBER(S): 4805/04

COUNSEL: S Kerr with B Bradley (Plaintiffs) G Curtin with D Jenkins (Defendant)

JUDGMENT

1 The plaintiffs are home owners who took out insurance with Chubb Insurance Company of Australia Limited.

2 The plaintiffs made a claim on Chubb. Chubb refused indemnity and the plaintiffs unsuccessfully sued Chubb in this Court.

3 The defendant, Finn Foster & Associates, is an insurance broker. The plaintiffs have sued the defendant claiming damages in negligence for failing to pass on to Chubb their claims history and effecting appropriate insurance on their behalf. The plaintiffs say these breaches resulted in Chubb's refusal to indemnify the plaintiffs under their insurance policy with it. The plaintiffs put their claim in the alternative on the basis that the defendant engaged in misleading or deceptive conduct, or conduct which was likely to mislead or deceive in contravention of s 51A of the Trade Practices Act 1974. Alternatively, the plaintiffs say the defendant engaged in conduct that was false and misleading in breach of s 52 of that Act.