Roy Atkin Johnstone v Broad Group Holdings Pty Limited & Ors [2011] NSWDC 181

District Court New South Wales

Medium Neutral Citation: Roy Atkin Johnstone v Broad Group Holdings Pty Limited & Ors [2011] NSWDC 181 Hearing dates: 16 August 2011 Decision date: 18 August 2011 Jurisdiction: Civil Before: Judge M Sidis Decision: 1. I grant leave to the plaintiff to join Wesfarmers General Insurance Limited to the proceedings. 2. I grant leave to the plaintiff to file an amended statement of claim in the form annexed to the amended notice of motion filed on 22 July 2011 marked A. The amended statement of claim is to be filed and served by 1 September 2011. 3. Wesfarmers is to pay the costs of the motion of the plaintiff and of the second defendant. 4. The affidavits in support of the motion are returned. Catchwords: LIMITATIONS: named defendant deregistered - application to substitute insurer - onus of establishing that relevant insurance policy in place - nature of cause of action arising under s 601AG of Corporations Act 2001 - whether right of action against insurer statute-barred. Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 Corporations Act 2001 Limitation Act 1969 Legal Profession Act 2004 Cases Cited: Kelley v Western Pacific Insurance Limited [2010] NSWSC 1397. Almario v Allianz Australia Workers Compensation NSW Insurance Limited [2005] NSWCA 19, (2005) 62 NSWLR 148, Pagnon v WorkCover Queensland (2001) 2 Qd R 492 Foster v QBE Insurance (Australia) Limited [2008] NSWSC 1004 Caven v Women's and Children's Health [2007] VSC 7 Baker-Morrison v State of New South Wales [2008] NSWDC 129 Category: Principal judgment Parties: Roy Atkin Johnstone (Plaintiff/Applicant)) Wesfarmers General Insurance (1st Defendant/Respondent) Broad Group Holdings Pty Ltd (2nd Defendant/Respondent) Representation: Mr C Hart (For Plaintiff/Applicant) Mr C.P Carter (For 1st Defendant/Respondent) Ms S Foley (For 2nd Defendant/Respondent) Bale Boshev Lawyers (For Plaintiff/Applicant) Hunt and Hunt Lawyers (For 1st Defendant/Respondent) Sparke Helmore (For 2nd Defendant/Respondent) File Number(s): 2010/00400806