AMP General Insurance Ltd v Maguire and Anor t/as MJM Automotive Mechanical Repairs & 2 Ors [2004] NSWCA 64

Reported Decision : 59 NSWLR 580

New South Wales Court of Appeal

CITATION : AMP General Insurance Ltd v Maguire and Anor t/as MJM Automotive Mechanical Repairs & 2 Ors [2004] NSWCA 64 HEARING DATE(S) : 4 March 2004 JUDGMENT DATE : 4 March 2004

JUDGMENT OF : Handley JA at 1, 30; Santow JA at 28; Campbell J at 29 DECISION : 1. Appeal allowed.; 2. The judgments of the District Court on the cross-claims set aside.; 3. Verdict and judgment for the first cross-defendant on the first cross-claim.; 4. The defendants to pay the first cross-defendant's costs of the proceedings in the District Court.; 5. Verdict and judgment for the defendants for $108,205 against the second cross-defendant on the second cross-claim with effect from 15 July 2003.; 6. The second cross-defendant to pay the costs of the defendants of the proceedings in the District Court on an indemnity basis, including any costs ordered to be paid by the defendants to the plaintiff and to the first cross-defendant.; 7. The appellant's costs of the appeal to be paid by CIC. ; 8. The plaintiff is entitled to his costs of the appeal as a submitting respondent and the employers, the first respondents, are entitled to their costs of the appeal as submitting respondents together with the costs which would have been incurred in ensuring that an appropriate order for costs would be made in their favour in respect of the trial, if the appeal succeeded.

CATCHWORDS : INSURANCE - compulsory third party - mechanic in charge of vehicle - driver as defined - requests person outside vehicle to start motor - starter also driver - starter injured - whether vehicle driven by mechanic - D LEGISLATION CITED : Motor Accidents Act 1988 s 3(1), s 9 CASES CITED : Ricketts v Laws (1988) 14 NSWLR 311 Shortland County Council v Government Insurance Office [1973] 2 NSWLR 257 AMP General Insurance Ltd (Appellant) PARTIES : Micheal James Maguire and Patricia Mary Maguire t/as MJM Automotive Mechanical Repairs (First Respondents) CIC Insurance Ltd (Second Respondent) Paul Deas (Third Respondent) FILE NUMBER(S) : CA 40678/03 D J Russell SC (Appellant) COUNSEL : J De Berg (First Respondents) K Pierce (Second Respondent) D J Hooke (Third Respondent) Henry Davis York (Appellant) SOLICITORS : Astley Thompson Cox (First Respondents) Stewart Cuddy & Mockler (Second Respondent) Beilby Poulden Costello (Third Respondent)