Kassem v Colonial Mutual [2001] NSWCA 38

New South Wales Court of Appeal

CITATION : Kassem v Colonial Mutual [2001] NSWCA 38 FILE NUMBER(S) : CA 40130/99 HEARING DATE(S) : 23/02/01 JUDGMENT DATE : 6 March 2001

PARTIES : Mohammed Kassem by his tutor Mehdi Kassem - Appellant Colonial Mutual General Insurance Company Limited - Respondent JUDGMENT OF : Powell JA at 1; Ipp AJA at 7; Rolfe AJA at 8

LOWER COURT JURISDICTION : District Court LOWER COURT 6459/97 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER :

COUNSEL : Mr T.M. Lynch - Appellant Mr J.D. Hislop QC/Mr G.A. Seib - Respondent SOLICITORS : Colin Daley Quinn - Appellant McCulloch & Buggy - Respondent CATCHWORDS : Practice and Procedure - Competence of Appeal from District Court - Whether appeal from District Court incompetent because the affidavit pursuant to Part 51 rule 8 SCR failed to show that the appeal involved a matter at issue amounting to or of the value of $100,000 or more - Held the appeal was incompetent at the time the Notice of Appeal was filed as the affidavit did not disclose facts but rather a belief: Anthony v Maglovenos (Court of Appeal - 11 July 1978 - unreported) and Ozpinar v Assaily (Court of Appeal - 19 February 2001 - unreported) followed. - Held by Powell JA that the appeal was also incompetent at that time as a substantial amount involved was liquidated damages for which the plaintiff could not sue under the policy having elected to affirm it: Larratt v Bankers & Traders Insurance Co Limited (1941) 41 SR 215 and Russell Young Abalone Pty Limited v Traders Prudent Insurance Company Limited (1993) 7 ANZ Ins Cas 61-182 - Principles on which leave to appeal will be granted - Application for leave to appeal refused as neither the amounts involved justified it and there were no questions of principle: Dunn v Ross Lamb Motors [1978] 1 NSWLR 26 and Carolan v AMF Bowling Pty Limited (Court of Appeal - 16 November 1995 - unreported) followed and applied - Matters for Pleading - Desirability for the pleading of all issues, which should be pleaded, rather than reliance on the way in which case fought or argued: Dare v Pulham (1982) 148 CLR 658 referred to. District Court Act 1973 LEGISLATION CITED : Insurance Contracts Act 1984 (C'th) Supreme Court Act 1970 Dunn v Ross Lamb Motors [1978] 1 NSWLR 26 Larratt v Bankers & Traders Insurance Co Limited (1941) 41 SR 215 Russell Young Abalone Pty Limited v Traders Prudent Insurance Company Limited (1993) 7 ANZ Ins Cas 61-182 Anthony v Maglovenos (Court of Appeal - 11 July 1978 - unreported) CASES CITED: Ozpinar v Assaily (Court of Appeal - 19 February 2001 - as yet unreported) CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Huntsman Chemical Company Australia Limited v International Pools Australia Limited (1995) 36 NSWLR 242 Dare v Pulham (1982) 148 CLR 658 Carolan v AMF Bowling Pty Limited (Court of Appeal - 16 November 1995 - unreported) DECISION : (a) The appeal be dismissed as incompetent; (b) Leave to appeal be refused; (c) Leave to amend the Notice of Appeal by adding Ground 20 in the Proposed Second Amended Notice of Appeal be refused; (d) Each party pay its own costs of the appeal