Guild Insurance Ltd v Hepburn [2014] NSWCA 400

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Guild Insurance Ltd v Hepburn [2014] NSWCA 400 Hearing dates: 31 October 2014 Decision date: 24 November 2014 Before: Macfarlan JA at [1]; Meagher JA at [43]; Gleeson JA at [58] Decision: (1) Leave to appeal granted. (2) Appeal dismissed with costs. [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: INSURANCE - respondent claimed damages from former dentist for injury suffered as a result of allegedly wrongful advice and treatment - primary judge granted leave to join insurer as second defendant to proceedings under s 6 of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - whether arguable that insurer is liable to indemnify insured - whether arguable that insured was aware of circumstances that might give rise to a claim - whether arguable that insured will not be able to satisfy judgment against her - appeal dismissed Legislation Cited: Insurance Contracts Act 1984 (Cth), ss 40, 54 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6 Cases Cited: Antico v Heath Fielding Australia Pty Limited [1997] HCA 35; 188 CLR 652 Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; 302 ALR 101 Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213 FAI General Insurance Co Limited v Australian Hospital Care Pty Limited [2001] HCA 38; 204 CLR 641 Gosford City Council v GIO General Ltd [2003] NSWCA 34; 56 NSWLR 542 Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33; 88 ALJR 841 Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 Oswald v Bailey (1987) 11 NSWLR 715 Owners-Strata Plan 50530 v Walter Construction Group Ltd (in Liq) [2007] NSWCA 124; 14 ANZ Ins Cas 61-734 Registrar-General of New South Wales v LawCover Insurance Pty Ltd [2014] NSWCA 241; 17 BPR 33,235 Tzaidas v Child [2004] NSWCA 252; 61 NSWLR 18 Texts Cited: Australian Law Reform Commission Report No 20, Insurance Contracts (1982), Summary of Recommendations Category: Principal judgment Parties: Guild Insurance Ltd (Applicant) Mary Hepburn (Respondent) Representation: Counsel: S Donaldson SC/A J Bowen (Applicant) M Thompson (Respondent) Solicitors: Meridian Lawyers (Applicant) Gerard Malouf & Partners (Respondent) File Number(s): CA 2014/8435 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-12-13 00:00:00 Before: Norton SC DCJ File Number(s): DC 2013/123974