Vitale v Allianz Australia Insurance Ltd [2014] NSWCA 358

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Vitale v Allianz Australia Insurance Ltd [2014] NSWCA 358 Hearing dates: 7 October 2014 Decision date: 23 October 2014 Before: Macfarlan JA at [1]; Barrett JA at [2]; Sackville AJA at [3] Decision: 1. Appeal dismissed. 2. Appellants pay the Respondent's costs of the appeal. [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: APPEAL - appellants sought to rely on argument not raised at trial - whether the respondent could have adduced evidence to meet argument had it been raised at trial - leave to raise the argument refused Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) s 12CC Home Building Act 1989 (NSW) ss 18B, 92, 99 Trade Practices Act 1974 (Cth) ss 51AA, 51AC Uniform Civil Procedure Rules 2005 (NSW) r 14.14 Cases Cited: Allianz Australia Insurance Limited v Anthony Vitale [2014] NSWSC 364 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 Wallaby Grip Limited v QBE Insurance (Australia) Limited [2010] HCA 9; 240 CLR 444 Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107 Water Board v Moustakas [1988] HCA 12; 180 CLR 491 Category: Principal judgment Parties: Anthony Vitale (First Appellant) Giuliana Vitale (Second Appellant) Allianz Australia Insurance Ltd (Respondent) Representation: Counsel: DA Allen (Appellants) M Ashhurst SC / AW Smith (Respondent) Solicitors: Ronayne Owens Lawyers (Appellants) Moray & Agnew Lawyers (Respondent) File Number(s): 2014/176633 Publication restriction: None Decision under appeal Jurisdiction: 9111 Citation: Allianz Australia Insurance Limited v Anthony Vitale [2014] NSWSC 364 Date of Decision: 2014-04-01 00:00:00 Before: Sackar J File Number(s): 2010/93159