STYLIS v UNITED MEDICAL PROTECTION LTD [2007] NSWCA 109

New South Wales Court of Appeal

CITATION: STYLIS v UNITED MEDICAL PROTECTION LTD [2007] NSWCA 109

HEARING DATE(S): 20 March 2007

JUDGMENT DATE: 8 May 2007

JUDGMENT OF: McColl JA at 1; Basten JA at 41; Young CJ in Eq at 68

DECISION: (1) Grant leave to appeal from the judgment and orders made in the Common Law Division on 18 September 2006; (2) Direct that the draft notice of appeal be filed within seven days; (3) Allow the appeal and set aside the judgment and orders made in the Common Law Division; (4) In lieu thereof; (a) set aside order 2(a) made by the Local Court on 17 November 2005 (for the amount of the call); (b) order that UMP pay Dr Stylis one-half of his costs in the Local Court, and; (c) otherwise dismiss the appeal from the judgment and orders of the Local Court; (5) Order that UMP pay Dr Stylis two-thirds of his costs in the Common Law Division; (6) Order that UMP pay Dr Stylis his costs of the application for leave to appeal and the appeal in this Court.

CATCHWORDS: CORPORATIONS – COMPANY CONSTITUTION - construction of provisions in constitution of a professional indemnity insurer – whether insurer had power to make a "call" when membership had ceased due to default in payments of subscription – whether debt was sufficiently proved by the claimant's name being on the register of ordinary members

Corporations Act 2001 (Cth), ss 140, 168, 169, 175, 176, 251A LEGISLATION CITED: Local Courts Act 1982 (NSW), ss 73, 74 Supreme Court Act 1970 (NSW), s 101

Australian Broadcasting Commission v Australasian Performing Rights Association Ltd [1973] HCA 36; (1973) 129 CLR 99 Bailey v New South Wales Medical Defence Union Ltd [1995] HCA 28; (1995) 184 CLR 399 Dobbs v National Bank of Australasia Ltd [1935] HCA 49; (1935) 53 CLR 643 Ho Tung v Man On Insurance Co Ltd [1902] AC 232 (PC) Kassem v Colonial Mutual [2001] NSWCA 38 Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812; (2005) 56 ACSR 263 Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144; (2005) 56 ACSR 263 CASES CITED: Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 National Roads and Motorists' Association Ltd (NRMA) v Parkin [2004] NSWCA 153; (2004) 60 NSWLR 224 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955 Toepfer v Continental Grain Co Ltd [1974] 1 Lloyds' Rep 11 Upper Hunter County District Council v Australian Chilling and Freezing Limited [1968] HCA 8; (1968) 118 CLR 429 Wilton v Commonwealth of Australia (1990) 12 MVR 243 K. Lewison QC "The Interpretation of Contracts" (1997) Sweet & Maxwell, 12.01