Glenda Monica Kalyk v Club Marine Ltd [2014] NSWCATCD 88

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Glenda Monica Kalyk v Club Marine Ltd [2014] NSWCATCD 88 Hearing dates: 26 May 2014 Decision date: 29 May 2014 Before: J Smith, Senior Member Decision: 1.The respondent shall pay the applicant the sum of $15,400.00 immediately. 2.The application is otherwise dismissed. Catchwords: Exclusion clauses contract of insurance, insured's duty to act reasonably, causal relationship between insured's actions and risk assumed. Legislation Cited: Insurance Contracts Act 1984 (Clth)(IC Act) Civil and Administrative Tribunal Act 2013 (NCAT Act) Consumer Claims Act 1998 (CC Act) Cases Cited: Container Handlers Pty. Ltd. v Insurance Commission of Western Australia & Ors [2001] WASCA 304, Vero Insurance Ltd. v Power Technologies Pty.Ltd CA 40174/06, Moltoni Corporation Pty. Ltd. v QBE Insurance Ltd [2001] HCA 73, Dumitrov v SC Johnson and Son Superannuation Pty. Ltd. and anor [2006]NSWSC 1372, Zurich Australian Insurance Ltd. v Metals and Minerals Insurance Pty. Ltd. [2007]WASC 62 Category: Principal judgment Parties: Glenda Monica Kalyk (Applicant) Club Marine Ltd (Respondent) Representation: The applicant was represented by Mr. Kalyk of counsel The respondent was represented by Mr. Newell, solicitor File Number(s): GEN 13/52502

reasons for decision

APPLICATION 1This application was filed as a General Claim in the Consumer Trader and Tenancy Tribunal on 9 October 2013. The application progressed through directions and attempted conciliation and was listed for hearing on 18 February 2013. The applicant was represented at the directions hearing on 29 October 2013 by her PA, who was without any written authority. At that time the name of Frank Kalyk was joined as an applicant in the proceedings. 2From 29 October 2013 the matter proceeded with both Frank Kalyk and Glenda Kalyk named as applicants. Both applicants requested an adjournment of the matter when it was set down for hearing on 21 January 2014 on the basis that both would be out of the country. 3The matter proceeded to hearing on 18 February 2013 with both Mr Kalyk and Mrs Kalyk as applicants. Late in the proceedings it came to the attention of the Member that Mr Kalyk is legally qualified, a fact that was not disclosed at the commencement of the hearing. 4Accordingly, for reasons of procedural fairness the Member granted both parties leave to be legally represented and adjourned the hearing to recommence before a different member on another occasion. 5The matter came before me for hearing this morning at which time the parties were represented as noted above. However, Mr Kalyk advised that he had been joined as an applicant without his consent and that he wished to be removed as an applicant. 6As there was no prejudice to the respondent an order was made removing Mr Kalyk as an applicant. 7The consequence of the above was that at the hearing on 26 May 2014 the parties were legally represented in circumstances where they would otherwise not have been entitled to representation.