Perpetual Trustees Victoria Ltd v Malouf [2012] NSWSC 1119

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustees Victoria Ltd v Malouf [2012] NSWSC 1119 Hearing dates: 1 June 2012 Decision date: 31 October 2012 Jurisdiction: Common Law Before: Davies J Decision: (1) The Second Defendant's Notice of Motion of 3 January 2012 and his Amended Notice of Motion of 17 February 2012 are dismissed. (2) The Second Defendant is to pay LawCover's costs of the Motions. Catchwords: INSURANCE - possession proceedings - cross-claim against solicitor - application to join insurer pursuant to s 6 Law Reform (Miscellaneous Provisions) Act - when event giving rise to claim for damages occurred - whether insurer bound by pleading of third party - when damage first suffered - when reasonably ascertainable that recoupment is impossible - whether cause of action accrued prior to inception of policy Legislation Cited: Fair Trading Act 1987 Insurance Contracts Act 1984 Law Reform (Miscellaneous Provisions) Act 1946 Legal Profession Act 1987 Uniform Civil Procedure Rules Cases Cited: Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 Hawkins v Clayton (1988) 164 CLR 539 Kenny & Good Pty Ltd v MGICA(1992) Ltd (1999) 199 CLR 413 Key Nominees Ltd v Ace Insurance Ltd [2008] NSWDC 62 Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd (1995) 8 ANZIC 61,235 Perpetual Trustees Victoria Ltd v Malouf [2008] NSWSC 834 Ross v Cook [2009] NSWSC 671 The Owners - Strata Plan No 50530 v Walter Construction Group Ltd (in liq) [2007] NSWCA 124 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 West Wake Price & Co v Ching [1957] 1 WLR 45 Texts Cited: Derrington & Ashton, The Law of Liability Insurance (2005) Lexis Nexis, 2nd Ed. Category: Interlocutory applications Parties: Perpetual Trustees Victoria Ltd (Plaintiff) Anis Malouf (First Defendant) Albert Anis Malouf (Second Defendant) Alice Malouf (Third Defendant) Charles Alroy Goldberg (Cross-Defendant) Registrar-General of NSW (Cross-Defendant) Law Cover Insurance Pty Ltd (Interested party) Representation: Counsel: A Barwick (Plaintiff) E Yin (First Defendant) R Stitt QC (Second Defendant) A Crossland (Third Defendant) G Stilianou (Registrar General) T M Faulkner (Law Cover Insurance Pty Ltd) Solicitors: Mills Oakley Lawyers (Plaintiff) Legal Aid NSW (First Defendant) WKA Legal Pty Ltd (Second Defendant) Craig Milne & Associates (Third Defendant) Solicitor for Registrar-General of NSW (Registrar-General of NSW) Mullane & Lindsay (Law Cover Insurance Pty Ltd) File Number(s): 2006/263470