Dominion WFS Pty Limited -v- Rex John Phillpott [2016] NSWSC 478

Supreme Court New South Wales

Medium Neutral Citation: Dominion WFS Pty Limited -v- Rex John Phillpott [2016] NSWSC 478 Hearing dates: 16 March 2016 Decision date: 16 March 2016 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Leave granted to the plaintiff to join Ace Insurance Limited as third defendant Catchwords: PRACTICE AND PROCEDURE - application for leave to join a new party pursuant to UCPR Pt 6 r 6.19 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Corporations Act 2001 (Cth) Superannuation Industry (Supervision) Act 1993 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 No.33 (NSW) Insurance Contracts Act 1984 (Cth) Cases Cited: CGU Insurance Limited v Blakeley (2016) 90 ALJR 272 Wardley Aust Ltd v Western Australia (1992) 175 CLR 514 Category: Procedural and other rulings Parties: Dominion WFS Pty Limited - First Plaintiff Dominion Admin Services Pty Ltd - Second Plaintiff Astarr Capital Pty Ltd - Third Plaintiff Rex John Phillpott - First Defendant David Ronald Andrews - Second Defendant Representation: Counsel: A.P. Coleman SC with A.J. Bailey - Plaintffs M.F. Newton - Respondent

Solicitors: Slater & Gordon Limited - First, Second and Third Plaintiffs File Number(s): 2015/286141

EX TEMPORE Judgment 1. HIS HONOUR: This is a motion to join as third defendant to these proceedings, Ace Insurance Limited ("ACE"), to enable the plaintiffs to seek a declaration that it, ACE, is liable to indemnify the defendants under two insurance policies in respect of the claim which the plaintiffs make against them. The plaintiffs rely on Pt 6 r 6.19 of the Uniform Civil Procedure Rules 2005 (NSW) which permits two or more persons to be joined as defendants in any originating process if separate proceedings against each of them would give rise to a common question of law or fact and all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transaction, or if the Court gives leave for them to be joined. A similar course was recently considered by the High Court in CGU Insurance Limited v Blakeley [2016] HCA 2; (2016) 90 ALJR 272. 2. One ground of opposition to the joinder was that the Proposed Amended Commercial List Statement ("the pleading") does not plead a cognisable case against the insured, with the consequence that there is no cognisable case against ACE. It emerged from debate with counsel that there are some difficulties with the pleading, but not such as to persuade me that the plaintiffs' case is hopeless. To conduce to the just, quick and cheap determination of the real issues, the pleading requires improvement. What is required has been the subject of discussion – it appears from the transcript and need not be restated. 3. Another ground of opposition was that the plaintiffs' cause of action against the first and second defendants is statute barred under provisions of the Corporations Act 2001 (Cth) and the Superannuation Industry (Supervision) Act 1993 (Cth). It is not possible, and counsel for the proposed third defendant correctly concedes, for the Court to be satisfied that the limitations points will win, notwithstanding the force of the arguments which appear to be available: Wardley Aust Ltd v Western Australia (1992) 175 CLR 514. 4. Next, it was put that on the footing of the averments as they currently stand, no demonstrable loss was, or could have been, suffered by the plaintiffs, because the complaint amounts to loss of an unfulfilled expectation which is not loss, and further, there are difficulties of causation and remoteness. These too are not matters which the Court can or should on an application of this kind, in the particular circumstances of this case, determine. There is sufficient material in my opinion to establish that there is a possible case and on that footing, subject to the amendments to the pleading which have been discussed, I propose to permit the joinder. The plaintiffs have leave to file and serve an Amended Commercial List Statement joining Ace as a third defendant. 5. The significant focus of the original application was s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and s 51 of the Insurance Contracts Act 1984 (Cth). Those matters have not been proceeded with. Certain deficiencies in the pleading have been identified. In all the circumstances, in my opinion, the plaintiff should pay two thirds of ACE's costs of the Motion. Those costs are not to be assessed, nor are they payable, until the conclusion of the proceedings.