Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213 Hearing dates: 22 June 2012 Decision date: 19 July 2012 Before: Allsop P at [1] Campbell JA at [2] Meagher JA at [72] Decision: (1) Grant leave to appeal against the refusal of the primary judge to grant leave to file the proposed Third Cross Claim. (2) Direct that a notice of appeal, in substantially the form contained in the White Book but modified to relate only to the primary judge's decision to refuse leave concerning the Proposed Third Cross Claim, be filed within 14 days of the date of these orders. (3) The appeal be dismissed, with costs. (4) Subject to the preceding orders, dismiss the summons seeking leave to appeal, with costs. [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: PRACTICE AND PROCEDURE - joinder of insurer - Law Reform (Miscellaneous Provisions) Act 1946 s 6 - where respondent was the liability insurer of company A, alleged to be manufacturer of defective equipment - requirement to establish arguable case against the insured party - test for arguable case requires evaluation of evidence supporting pleaded case, not merely acceptance that facts have been pleaded which if true would, on an arguable view of the law, provide a remedy - insufficient evidence led to establish an arguable case that insured manufactured the defective equipment