Herde v Oxford Aviation Academy (Australia) Pty Ltd [2011] NSWCA 385

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Herde v Oxford Aviation Academy (Australia) Pty Ltd [2011] NSWCA 385 Hearing dates: 2 December 2011 Decision date: 02 December 2011 Before: Giles JA at [1], Macfarlan JA at [20], Meagher JA at [21] Decision: Oral application to revoke the leave to appeal dismissed. Appeal allowed. Orders 1 and 2 made on 22 October 2010 set aside, and in lieu thereof it ordered that the plaintiff's notice of motion be dismissed. Order 4 made on 22 October 2010 set aside, and in lieu thereof the plaintiff ordered to pay the defendant's costs of the notice of motion. As to the costs on appeal, respondent ordered to pay the appellant's costs including the costs of the leave application. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - summary judgment - whether arguable defence - no question of principle. INSURANCE - defendant's insurer settled claim against him - whether bound defendant to pay settlement sum - policy clause gave authority to settle - payment by insured alone - settlement released another party as well as insured - whether misuse of authority whereby insured not bound - arguable defence. Legislation Cited: Damage by Aircraft Act 1952 (NSW) Damage by Aircraft Act 1999 (C'th) Cases Cited: Beacon Insurance Company Ltd v Langdale (1939) 4 All ER 204; Groom v Crocker (1939) 1 KB 194. Category: Principal judgment Parties: Christopher John Herde - Appellant Oxford Aviation Academy (Austaralia) Pty Ltd - Respondent Representation: D A Lloyd - Appellant D Stanton - Respondent CLS Lawyers - Appellant Norton White - Respondent File Number(s): CA 2010/00387379 Decision under appeal Citation: Oxford Aviation Academy (Australia) Pty Ltd v Herde, unreported. Date of Decision: 2010-10-22 00:00:00 Before: Robison DCJ File Number(s): DC 2009/338569