SWAN v TRANS PACIFIC INSURANCE CORPORATION [2007] NSWDC 17

New South Wales District Court

CITATION: SWAN v TRANS PACIFIC INSURANCE CORPORATION [2007] NSWDC 17

HEARING DATE(S): 24 January 2007 EX TEMPORE JUDGMENT DATE : 24 January 2007

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

CATCHWORDS: Leave to proceed against insurer - Clause in policy excluding cover where person charged with criminal assault

LEGISLATION CITED: Insurance Contracts Act 1984 Law Reform (Miscellaneous Provisions) Act 1946

PARTIES: Neal Michael Swan Trans Pacific Insurance Corporation

FILE NUMBER(S): 2731/06

A G Rogers Plaintiff COUNSEL: T J Clarke Defendant

Fitzpatrick Solicitors Plaintiff SOLICITORS: Vardanega Roberts Defendant

JUDGMENT

HER HONOUR

1 In this matter by way of an amended summons filed on 29 June 2006 the plaintiff seeks to proceed against Trans Pacific Insurance Corporation in respect of an assault in which he was injured on 9 January 2005. His application is based upon a contract of insurance between the proposed defendant and a company Altoni Pty Limited which provided security services for the Crowne Plaza Hotel at Terrigal.

2 The plaintiff's claim arises out of what he say was an assault by a security guard at the hotel premises on 9 January 2005. Altoni Pty Limited is in liquidation and is thus not able to respond to the claim directly.

3 The application is brought pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946.

4 My attention has been drawn to the relevance of the second part of that section which provides that leave is not to be granted if the Court is satisfied that the insurer was entitled under the terms of the contract of insurance to disclaim liability.