Watson, Estate of v Conolly [2012] NSWSC 741

Supreme Court New South Wales

Medium Neutral Citation: Watson, Estate of v Conolly [2012] NSWSC 741 Hearing dates: 22 June 2012 Decision date: 22 June 2012 Before: Beech-Jones J Decision: (1) Paragraphs 184 to 189 of the amended defence are struck out. (2) Leave is granted to the defendants to file a further defence to the further amended statement of claim which adds paragraph 174 in the form that was handed up in court on 22 June 2012. (3) Any submission and affidavit material from the plaintiff on the question of costs and whether they are payable forthwith is to be filed and served by 28 June 2012 with such submission to be no longer than three pages. (4) Any material from the defendant in response to be filed and served by 4 July 2012, with any such submission to be no longer than 3 pages. (5) Any reply to be filed by 9 July 2012, with any such reply not to be longer than a page. (6) Plaintiff's application for indemnity costs to be payable forthwith to be determined on the papers. (7) Listed for further directions before a Registrar on 30 July 2012 at 9am. Catchwords: PRACTICE AND PROCEDURE - professional negligence pleadings - application to strike out defence - whether pleadings vexing or embarrassing - whether compromise reached with Plaintiff's professional indemnity insurer relevant to defence - subrogation - application to amend defence - whether proposed amended pleadings sufficiently arguable - relevance of Plaintiff's compromise with professional indemnity insurer - whether proportionate liability pleading a proper claim. Legislation Cited: Civil Liability Act 2002 Part IV, s 34(2) Insurance Contracts Act 1984 (Cth) s 48 Cases Cited: BL & GY International Co Ltd v Hypec Electronics Pty Ltd [2004] NSWSC 1119 Castellain v Preston (1883) 11 QBD 380 Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] AC 643 Le v Williams [2004] NSWSC 645 Scholle Industries Pty Ltd v AEP Industries (NZ) Ltd [2009] SASC 145 Smart v Westpac Banking Corporation [2011] FCA 829; (2011) 282 ALR 400 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pty Ltd [2009] HCA 50; (2009) 240 CLR 391 Category: Interlocutory applications Parties: Christine Watson as Executor in the Estate of David Patrick Watson (Plaintiff) Alan Robert Conolly (First Defendant) Paul John Hendriks (Second Defendant) David Michael Hunt (Third Defendant) Lara Mynott (Fourth Defendant) Elizabeth Ramsay (Fifth Defendant) Representation: Counsel: Ms V M Heath (Plaintiff) Mr B Toomey QC (First - Fifth Defendants) Solicitors: Etheringtons Solicitors (Plaintiff) HWL Ebsworth (First - Fifth Defendants) File Number(s): 2007/00264927