Mesiti v CPT Custodian Limited [2013] NSWDC 122

District Court New South Wales

Medium Neutral Citation: Mesiti v CPT Custodian Limited [2013] NSWDC 122 Hearing dates: 27 March 2013 Decision date: 28 March 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Leave to the first defendant to file a third cross-claim against Calliden Insurance Limited pleading the matters raised in the application, subject to orders 2 and 3. 2. The first defendant not file the third cross-claim until two weeks have elapsed after service of the proposed third cross-claim by the first defendant upon Calliden Insurance Limited. 3. If Calliden Insurance Limited makes an application to revoke the leave granted in order 1, by reason of the contents of the proposed third cross-claim, no such third cross-claim be filed until the application by Calliden Insurance Limited is determined. 4. No order as to the costs of the amended notice of motion filed 13 March 2013. 5. Note that the first defendant by its solicitor has given an undertaking to present the lease for stamping. 6. Direct that any proposed cross-claim by the first defendant against Calliden Insurance Limited should be served on Calliden Insurance Limited and the parties by 5pm on 5 May 2013. 7. Stand over for directions on 22 April 2013 at 9.30am before the Judicial Registrar. Catchwords: PROCEDURE - joinder - insurer - need for pleadings - statutory charge - reasonable concern of ability of insured to meet judgment - obligation on insured to take reasonable care - construction - named insured - interested party - contractual obligation to indemnify - contractual obligation to obtain insurance Legislation Cited: Civil Procedure Act 2005, s 56 Duties Act 1997, s 304 Insurance Contracts Act 1984 (Cth), s48, s 54 Law Reform (Miscellaneous Provisions) Act 1946, s 6 Uniform Civil Procedure Rules 2005, r 6.19, r 6.24 Cases Cited: Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 Campbell v Mutual Life and Citizens Fire and General Insurance Company (New Zealand) Limited [1971] NZLR 240 Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390 Schipp v Cameron (Supreme Court of New South Wales, Young J, 4 May 1995, unreported) Tzaidas v Child (2004) 61 NSWLR 18 Vero Insurance Ltd v Power Technologies Pty Ltd [2007] NSWCA 226 Category: Interlocutory applications Parties: Julie Ann Mesiti (plaintiff) CPT Custodian Limited (first defendant/applicant on notice of motion) Glad Cleaning Service Pty Limited (second defendant) Jun Ku (third defendant) Sushi Nara Australia Pty Limited (fourth defendant) Top Green Management Pty Limited (fifth defendant) Calliden Insurance Limited (respondent on notice of motion) Representation: Mr S Walsh (first defendant/applicant on notice of motion) Ms Bassi (second defendant) Mr J Duncan (respondent on notice of motion) Thompson Cooper Lawyers Pty Ltd (first defendant/applicant on notice of motion) McCabes (second defendant) Hunt & Hunt (third defendant), (fourth defendant) and (respondent on notice of motion) File Number(s): 2011/179950 Publication restriction: No