Candy v GIO General Limited [2013] NSWSC 810

Supreme Court New South Wales

Medium Neutral Citation: Candy v GIO General Limited [2013] NSWSC 810 Hearing dates: 17 June 2013 Decision date: 25 June 2013 Jurisdiction: Common Law Before: Campbell J Decision: (1) The second defendant's notice of motion filed on 30th April 2013 seeking leave to withdraw its admission made on 15th February 2013 is dismissed. (2) The second defendant to pay the costs of the plaintiff and the first defendant of, and incidental to, the motion as agreed or assessed; (3) Pursuant to s.73 Civil Procedure Act 2005: (a) Order that the amended second cross-claim be dismissed with no order as to costs; (b) Declare that the cross-claimant to the amended second cross-claim, GIO General Limited, is prevented by the agreement made by the exchange of correspondence on 5th April 2013 from bringing fresh proceedings claiming contribution from John Peter Papadellis; (4) GIO General Limited to pay John Peter Papadellis' costs of, and incidental to, the notice of motion filed on 17th April 2013 forthwith after they have been agreed or assessed. Catchwords: PRACTICE AND PROCEDURE - Rule 17.3 and 17.6 Uniform Civil Procedure Rules 2005 (NSW) - application by second defendant seeking leave to withdraw an admission PRACTICE AND PROCEDURE - s73 Civil Procedure Act 2005 (NSW) - determination of question as to whether the proceedings have been settled between the second cross-defendant and second cross-claimant EQUITY - estoppel by representation - whether second defendant is estopped from denying to first defendant that second cross-defendant was an employee of the second defendants insured - nature of relevant detriment Legislation Cited: Civil Procedure Act 2005 (NSW) Employees Liability Act 1991 (NSW) Evidence Act 1995 (NSW) Law Reform Miscellaneous Provisions Act 1946 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: -Aon Risk Services Australia Limited v. Australian National University [2009] HCA 27; 239 CLR 175 -Australian Medic-Care Co. Limited v. Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220; 261 ALR 501 -Beck v. Weinstock [2012] NSWCA 289 -Bowcliff Pty Ltd v. QBE Insurance (Aust) Limited [2011] NSWCA 18 - Chartbrook Limited v. Persimmon Homes Ltd (2009) 1 AC 1101 -Clough & Rogers v. Frog (1974) 48 ALJR 481 -Codelfa Construction Pty Ltd v. State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337 -Connelly v. Wells (1994) 55 IR 73 -Coopers Brewery Limited v. Panfida Foods Limited (1992) 26 NSWLR 738 -Cropper v. Smith (1884) 26 Ch D 700 - Deangrove Pty Ltd v. Commonwealth Bank of Australia [2003] FCA 268 -Dovuro Pty Ltd v. Wilkins [2003] HCA 51; 215 CLR 317 -Drabsch v. Switzerland General Insurance Co. Limited (Unreported, 16th October 1996; BC9604909) -Eaglesfield v. Marquis of Londonderry (1876) 4 Ch D 693 -Entores Ltd v. Miles Far East Corporation [1955] 2 QB 327 -Flemming v. Marshall [2011] NSWCA 86 -Giumelli v. Giumelli [1999] HCA 10; 196 CLR 101 -Isaacs v Ocean Accident and Guarantee Corporation Ltd (1958) 58 SR (NSW) 69 -Lee & Ors. v. Keddie & Ors. [2009] NSWSC 777 -Lustre Hosiery Limited v. York [1935] HCA 71 -Pacific Carriers Ltd v. BNP Paribas [2004] HCA 35; 218 CLR 451 -Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455 -Sevic v Roarty (1998) 44 NSWLR 287 -Stevens v. Brodribb Sawmilling Co. Pty Ltd [1986] HCA 1; 160 CLR 16 -The Nominal Defendant v. Gabriel [2007] NSWCA 52; 71 NSWLR 150 -Toll (FGCT) Pty Ltd v. Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 -Yu v Speirs [2001] NSWCA 373 -Waltons Stores (Interstate) Ltd v. Maher [1988] HCA 7; 164 CLR 387 -Western Export Services Inc. v. Jireh International Pty Ltd [2011] HCA 45 -Zuijs v. Wirth Bros. Pty Ltd (1955) 93 CLR 561 Texts Cited: K.R. Handley, Estoppel by Conduct and Election, (2006) Thompson Sweet & Maxwell Category: Interlocutory applications Parties: Gregory William Candy (plaintiff) GIO General Limited (first defendant, second cross-claimant) Zurich Australian Insurance Limited (second defendant, cross-defendant, cross-claimant) John Peter Papadellis (second-cross defendant) Representation: Counsel: P.S. Jones (plaintiff) N.E. Chen with J. Lee (first defendant, second cross-claimant) R.C. Cavanagh SC (second defendant, cross-defendant, cross claimant) J.J. Loofs (second cross-defendant) Solicitors: Matthews Dooley & Gibson (plaintiff) Holman Webb (first defendant, second cross-claimant) Curwoods Lawyers (second defendant, cross-defendant, cross-claimant) Marsdens Law Group (second cross-defendant) File Number(s): 2010/117912