Gorczynski v W&FT Osmo Pty Ltd [2010] NSWCA 163

Reported Decision: 16 ANZ Insurance Cases 61-852241 FLR 24277 NSWLR 62

New South Wales Court of Appeal

CITATION: Gorczynski v W&FT Osmo Pty Ltd [2010] NSWCA 163

HEARING DATE(S): 2 June 2010

JUDGMENT DATE: 14 July 2010

JUDGMENT OF: Giles JA at 1; Tobias JA at 2; McColl JA at 137

(a) Leave to appeal from the decision of Simpson J of 24 July 2009 granted. DECISION: (b) Appeal dismissed. (c) The applicant to pay the second respondent's costs of the summons for leave to appeal and of the appeal.

CATCHWORDS: INSURANCE – Claims generally – Statutory charge on insurance money and leave to proceed against insurer – Plaintiff sought leave to commence proceedings against insurer to enforce charge – Primary judge dismissed application for leave – Appeal against decision of primary judge – Whether prohibition under s 6 of Law Reform (Miscellaneous Provisions) Act 1946 applies – Whether as a matter of discretion the application should be rejected – Whether claim for damages is for legal costs not causally related to alleged negligence of insured – Whether plaintiff has arguable case for establishing duty of care – Whether s 54 of Insurance Contracts Act 1984 (Cth) has no application because insured never made claim upon insurer for payment under policies – Whether plaintiff's cause of action was commenced outside limitation period – Plaintiff's claim against insured is statute barred – Plaintiff's application for leave to commence action against insurer refused - PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Rules of court – Parties – Joinder of parties – Plaintiff filed notice of motion seeking to join insurer as party to proceedings instituted by him against insured – Primary judge dismissed notice of motion – Appeal dismissed