ASPIOTI v LEIGH & 2 ORS [2003] NSWSC 1224

New South Wales Supreme Court

CITATION : ASPIOTI v LEIGH & 2 ORS [2003] NSWSC 1224 HEARING DATE(S) : 15 and 16 April 2003 JUDGMENT DATE : 19 December 2003

JUDGMENT OF : Hulme J at 1 DECISION : See paragraph 62

Georgia ASPIOTI Donna LEIGH PARTIES : Raytheon Aircraft Company Bruno KORTENHORST John DASS FILE NUMBER(S) : SC 11579/00; 20083/01 Mr J Glissan QC COUNSEL : Mr M Ashurst Mr M Neil QC with Mr S Benson Mr S Drummond SOLICITORS :

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

Friday, 19 December 2003

11579/00 and 20083/01 Georgia ASPIOTI v Donna LEIGH AND RAYTHEON AIRCRAFT COMPANY

Bruno KORTENHORST v John DASS AND Donna LEIGH JUDGMENT 1 HULME J: These Reasons related to Notices of Motion in both of the above proceedings. The proceedings and the Notices of Motion have many features in common. 2 Both proceedings arise out of a crash, on 28 May 1996, of a light aircraft. Both plaintiffs were passengers in the plane at the time and both were injured. Donna Leigh is sued as the personal representative of Clifford Collins, the person who was piloting the plane at the relevant time and who was killed in the crash. Raytheon Aircraft Company is said to have been the aircraft's manufacturer. John Dass was the owner of the aircraft at the time of the crash. All three are said to have been negligent.

3 In the proceedings in which she is the First Defendant, proceedings 11579/2000, Donna Leigh has filed 2 Cross-Claims. In the first, against Australian Aviation Underwriting Pool Pty Ltd (hereinafter referred to as "AAUP"), Ms Leigh asserts that Mr Dass entered into a contract of insurance with AAUP under which that organisation undertook to indemnify the Cross-Claimant – presumably a misnomer for Mr Collins – against any liability he might have for causing accidental bodily injury or death and that AAUP has refused to make that indemnity. In the second, against HIH Casualty & General Insurance Limited (in liquidation) and Resource Underwriting Pacific Pty Ltd (hereinafter referred to respectively as "HIH" and "RUP"), Ms Leigh alleges:- (i) Mr Dass retained Corporate Insurance Management Group Pty Ltd (hereinafter referred to as "CIMG") to effect such insurances as would indemnify the Cross-Claimant against any liability he might have for causing accidental bodily injury or death; (ii) CIMG owed the Cross-Claimant a duty to exercise proper skill in relation to the retainer; (iii) CIMG put in place a cover note but negligently failed to ensure it was extended or a valid policy put in place; (iv) That, if the Cross-Claimant is held liable and does not succeed against AAUP, such failure will be by reason of negligence on the part of CIMG; (v) that CIMG has been deregistered; (vi) That HIH and RUP agreed to indemnify CIMG against any liability it might have for such negligence, and (vii) Ms Leigh seeks to proceed against HIH and RUP pursuant to s601AG of the Corporations Law and to recover indemnity for any verdict obtained by the Plaintiff against Ms Leigh. 4 The particular proceedings with which these Reasons are concerned are applications which, in their final form, appear in Amended Notices of Motion filed in court on 15 April 2003. So far as is presently relevant, the orders sought in Ms Aspioti's Notice of Motion are:- 1. Leave to join Australian Aviation Underwriting Pool Pty Ltd as a Defendant in these proceedings under Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). 2. The time within which to join Australian Aviation Underwriting Pool Pty Ltd as a Defendant in these proceedings under Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), to be extended up to and including such time as this Honourable Court seems fit under Section 58 and/or 60G of the Limitation Act 1969 (NSW). 5. Leave to file a Further Amended Statement of Claim in the form attached herewith within such time as this honourable court sees fit. 6. Additionally, or alternatively, a declaration that Australian Aviation Underwriting Pool Pty Ltd is liable to indemnify the First Defendant in accordance with paragraph 3B of the policy document, a copy of which is annexed hereto and marked "A". 5 In the case of Mr Kortenhorst's Notice of Motion, the second of these prayers suggested a slightly different time for the extension sought, the third of these prayers omitted any reference to an attached form and the last referred to both Defendants. Except that this last mentioned difference raises the issue of the liability of AAUP to indemnify Mr Dass, these differences between the Notices of Motion do not affect the substance of the issues debated. 6 No draft Further Amended Statement of Claim was attached to Ms Aspioti's Notice of Motion, no separate argument was addressed to its form, and there is no need for me to spend time on that prayer. Furthermore, the sixth prayer was not seriously pursued and in light of the state of the evidence, I would not be disposed to deal with it unless compelled to do so. There is no such compulsion. Nor was there any attention given during the hearing before me to the issue of extension of time. 7 In support of the first of the prayers, the Plaintiffs contended that there was in existence at the relevant time a contract of insurance issued by Australian Aviation Underwriting Pool Pty Ltd (hereinafter referred to as "AAUP") to Mr Dass and that Mr Collins was an insured or otherwise entitled to the benefit of cover provided under that Contract. Alternatively, it was submitted that there was at least an arguable case that the foregoing was the situation. 8 It was not in dispute that in respect of the relevant aircraft, AAUP on 9 April 1996 issued a cover note for the period 12 April to 11 May 1996. In issue, however, was the question whether the cover so provided had been extended so as to be current on 28 May 1996 and whether the insurance granted was such as to provide cover to Mr Collins. It was also contended that, in any event, such an extension conferred no rights on the Plaintiff against AAUP. 9 Although it seems clear that if the period of insurance was extended, that extension was effected in the course of conversation, no affidavit or oral evidence was adduced from any one a party to any such conversation(s). Enough, however, was said during the course of proceedings before me to persuade me that I should draw no adverse inference from that fact. In that connection I have had regard to the fact that some of the relevant information was said by Mr Neil QC who appeared for Mr Aspioti to have come into the possession of the Plaintiff's lawyers only very recently, to the delays which have occurred in the litigation to the time of the hearing before me, and to the fact that counsel for AAUP foreshadowed that if the Plaintiff did adduce evidence from witnesses an adjournment would very probably be necessary. Rather did the Plaintiffs place reliance on the terms of documents produced on subpoena by AAUP. 10 The proceedings before me were not the first time the issue of whether there was insurance in force at the relevant time had been canvassed in court proceedings. An action had been commenced by Mr Dass against AAUP and CIMG. Mr Dass had sued AAUP alleging the existence of insurance and, against the possibility that that was not the situation, CIMG in the alternative for negligence and misrepresentation in the course of its acting as an insurance intermediary which had been involved in seeking or obtaining insurance cover. Those proceedings were settled pursuant to an agreement to which further reference will be made below. 11 However, it seems clear that some of the documents produced under subpoena by AAUP in the proceedings before me had been received by it as a result of discovery or other interlocutory steps in the course of the earlier litigation. In those circumstances it would not be appropriate to regard them as admissions by AAUP but to the extent to which they appear to be copies of business records of CIMG, they are entitled to some evidentiary weight. A fortiori the documents do not give rise to an estoppel as contended by Counsel for Mr Kortenhorst. A summary of some events and the contents of what seem to me the more significant documents are as follows:-