Abdiaziz Abdulle v QBE Insurance (Australia) Limited & Anor [2009] NSWDC 153

New South Wales District Court

CITATION: Abdiaziz Abdulle v QBE Insurance (Australia) Limited & Anor [2009] NSWDC 153

HEARING DATE(S): 26 May 2009 EX TEMPORE JUDGMENT DATE : 26 May 2009

JURISDICTION: civil

JUDGMENT OF: C Armitage DCJ

DECISION: Verdict for the defendants.

CATCHWORDS: Damages - whether deduction by third party tortfeasor from portion of plaintiff's verdict attributable to future losses of compensation paid by plaintiff's employer is permissable.

LEGISLATION CITED: Workers Compensation Act 1987 S 151Z

Allianz Workers Compensation Act Ltd v Evans (2003) DCR 154. CASES CITED: Tamerji v Rhee [2008] NSW CA 314. Turner v George Weston Foods Ltd [2007] NSW CR 67.

PARTIES: Abdiaziz Abdulle (Plaintiff) QBE Insurance (Australia) Limited & anor

FILE NUMBER(S): 4730/08

COUNSEL: Mr J Jobson (Plaintiff) Mr L King (Defendant)

JUDGMENT

1 This is an action by the plaintiff against two defendants, QBE Insurance (Australia) Limited, which I shall hereafter refer to as "QBE" and Craig Mostyn and Co Pty Limited which I shall hereafter refer to as "Mostyn". I thank counsel for their concise submissions, which have enabled me to deliver ex tempore reasons at the conclusion of argument.

2 The statement of claim first asserts that the plaintiff commenced proceedings against Mostyn in this Court seeking common law damages, and that QBE was the public liability insurer of Mostyn, and had agreed to indemnify Mostyn against damages that could be awarded against them in proceedings brought by the plaintiff pursuant to a policy of insurance between Mostyn and QBE.

3 It pleads that on 27 May 2008 Balla DCJ in this court awarded judgment in favour of the plaintiff against Mostyn for $105,000, together with costs. It asserts that on 4 June 2008 the plaintiff's solicitors sent to the solicitors for the defendants an authority to receive in the usual form, directing that no moneys be deducted or forwarded to third parties. It asserts that QBE, as the indemnifying insurer in respect of the verdict moneys, authorised, without the plaintiff's approval, payment of the indemnity sum to a third party. It asserts that the defendants, in breach of direction, forwarded to third parties the judgment sum, and that by so acting the defendants have failed to respond to a request by the plaintiff for the verdict sum and have converted that sum.