Ace Insurance Limited v Limit (No 3) Limited [2010] NSWCA 54

New South Wales Court of Appeal

CITATION: Ace Insurance Limited v Limit (No 3) Limited [2010] NSWCA 54

HEARING DATE(S): 23 March 2010

JUDGMENT DATE: 23 March 2010

JUDGMENT OF: Allsop P at 1; Macfarlan JA at 1

EX TEMPORE JUDGMENT DATE: 23 March 2010

DECISION: The application for leave to appeal is refused with costs.

CATEGORY: Procedural and other rulings

Ace Insurance Limited (ACN 001 642 020) (Applicant) Limit (No 3) Ltd (First Respondent) PARTIES: Oak Dedicated Limited (Second Respondent) The Underwriter Insurance Company (Third Respondent) GE Frankona Reinsurance Limited (Fourth Respondent)

FILE NUMBER(S): CA 2009/298575

COUNSEL: A J Meagher SC; T W Marskell (Applicant) S R Donaldson SC; H J A Neal (Respondents)

SOLICITORS: Wotton & Kearney Insurance Lawyers (Applicant) Norton Rose (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 50191/2005

LOWER COURT JUDICIAL OFFICER: Rein J

LOWER COURT DATE OF DECISION: 30 September 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Limit (No 3) Limited v ACE Insurance Limited [2009] NSWSC 514

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298575

ALLSOP P MACFARLAN JA

Tuesday, 23 March, 2010 ACE INSURANCE LIMITED v LIMIT (No 3) LIMITED Ex tempore Judgment 1 JUDGMENT OF THE COURT delivered by ALLSOP P: This is an application for leave to appeal from part of the orders made by a judge in the Commercial List in relation to a dispute between two groups of insurers. It is unnecessary to deal with the matter in detail. The description of the matters is set out fully in the parties' written submissions. 2 The Court is of the view that it would not be of ultimate utility to hive off one issue dealt with by the primary judge on liability and have an appeal structure based on that with other issues of liability outstanding, although it is possible that if the applicant were successful on the appeal that would be the end of the case and, if that were the case, it can be said that the controversy would be wholly resolved. 3 Nevertheless, the issues involved are ones of significant importance and novelty and are of a character that could well be such as to attract special leave to appeal. In those circumstances, the parties would be left in the position of unresolved liability issues in the second stream of appeal which might be an alternative ground for the applicant to succeed. 4 Neither party wishes to bring forward all liability questions and in the absence of that willingness we do not see there to be convenience or ultimate real advantage in bringing forward only one or two issues of those dealt with by the primary judge. 5 For those reasons, the application for leave to appeal is refused. The applicant is to pay the respondent's costs. **********