Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd and Ors [2001] NSWSC 431

New South Wales Supreme Court

CITATION : Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd and Ors [2001] NSWSC 431 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50097/2000 HEARING DATE(S) : 14, 15 & 17 May, 2001 JUDGMENT DATE : 5 June 2001

Running Pigmy Productions Pty Ltd [ACN 071 459 142] (Plaintiff) PARTIES : AMP General Insurance Co Ltd [ACN 008 405 632] (First Defendant) Royal Sun Alliance Australia Ltd [ACN 005 297 807] (Second Defendant) HIH Casualty & General Insurance Ltd [ACN 008 482 291] (Third Defendant) JUDGMENT OF : Palmer J

COUNSEL : M. Walton SC, J.E. Keesing (Plaintiff) J.W. Stevenson (Defendants) SOLICITORS : Gells (Plaintiff) Mallesons Stephen Jaques (Defendants) CATCHWORDS : PRACTICE AND PROCEDURE - ABUSE OF PROCESS - ANSHUN ESTOPPEL - Present plaintiff commenced earlier proceedings against defendants as one of two co-plaintiffs - co-plaintiffs had separate causes of actioin against defendants although arising out of same events and under same insurance policy - present plaintiff discontinued earlier proceedings with leave of Court - remaining co-plaintiff proceeded to trial - proceedings settled - present plaintiff commences fresh proceedings against defendants - defence of abuse of process and Anshun estoppel - whether reasonable for plaintiff to have prosecuted earlier proceedings to conclusion - no abuse of process in discontinuing earlier proceedings in order to bring subsequent proceedings with settlement monies derived from earlier proceedings - no Anshun estoppel. - INSURANCE - Claim for property damage - insurers wrongfully deny liability - plaintiff thereby loses opportunity to derive profits from sale of destroyed property and from publication of magazine - general damages for loss of opportunity claimed - principles of valuing loss of opportunity. LEGISLATION CITED : Supreme Court Rules Pt.21 r.7, Pt.8 r.2, Pt.8 r.6 Brown v Parker [1961] WAR 194 Castanho v Brown & Root (UK) Ltd [1981] AC 557 CASES CITED : Henderson v Henderson (1843) 3 Hare 100; (1843) 67 ER 313 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Trade Practices Commission v Manfal Pty Ltd (No.3) (1991) 33 FCR 382 DECISION : 1. Verdict for the plaintiff agaisnt the first defendant in the sum of $187,220; 2. Verdict for the plaintiff against the second defendant in the sum of $109,890