National Rail v HIH [2001] NSWSC 440

New South Wales Supreme Court

CITATION : National Rail v HIH [2001] NSWSC 440 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50114/00 HEARING DATE(S) : 25.5.01 JUDGMENT DATE : 6 June 2001

PARTIES : National Rail Corporation Ltd -v- HIH Casualty & General Insurance Ltd & Ors JUDGMENT OF : Hunter J

Applicant/Plaintiff: J W Stevenson COUNSEL : Respondant/First Defendant: M Slattery QC Second & Third Defendants: P Jamieson SOLICITORS : Applicant/Plaintiff: Deacons Lawyers Respondant/ First, Second & Third Defendants: Colin Biggers & Paisley CATCHWORDS : Corporations Law - declaratory proceedings by insured against joint insurers - appointment of provisional liquidators to one of insurers - insurers in the same interest - proceedings fixed for hearing - principles and considerations affecting discretion under under s471B Corporations Law. Transfield v HIH (2001) NSWSC 347 CASES CITED : Ibbco v HIH (2001) NSWSC 346 Kilborn v FAI; Bateman v FAI (2001) NSWSC 348 DECISION : Leave to proceed granted upon the condition that any judgment obtained against the first defendant (save for lodgement of proof of debt) may not be enforced without the leave of the Court. Costs of the application be costs in the proceedings.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST HUNTER J WEDNESDAY 6 JUNE 2001

50114/00 NATIONAL RAIL CORPORATION LTD -v- HIH CASUALTY & GENERAL INSURANCE LTD & ORS REASONS FOR JUDGMENT

1 This is an application pursuant to s 471B of the Corporations Law for leave to proceed in these proceedings against the first defendant, provisional liquidators having been appointed to it by order of this Court of 15 March 2001. 2 The proceedings are by way of summons seeking a declaration in the following terms: "1. A declaration that the plaintiff is entitled to be indemnified by the defendants (the first defendant as to 50% and each of the second and third defendants as to 25%) under a combined liability policy of insurance ("the policy") in respect of payments made by it to effect repairs to track damaged by a derailment on 6 February 1996."