Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 Hearing dates: 13 December 2016 Decision date: 16 February 2017 Before: Macfarlan JA at [1]; Leeming JA at [2]; Simpson JA at [93] Decision: 1. Appeal allowed in part.

2. Set aside the orders made on 18 September 2015, and in lieu thereof, order as follows:

(i) Dismiss the proceedings insofar as they are based on allegations of negligence (namely, the claims pleaded under the headings "Economic loss" and "Personal injury");

(ii) Grant leave to Mr Perera within eight weeks to file and serve a Further Amended Statement of Claim confined to the allegation that he was defamed by the publication of a letter dated 13 December 2013, such leave being without prejudice to Genworth's right to object all or part of it, if it sees fit to do so;

(iii) Transfer the proceedings to the District Court of New South Wales, with a view to their being placed in the Defamation List;

(iv) Mr Perera to pay forthwith 75% of Genworth's costs of its notice of motion filed 30 January 2015.

3. No order as to the costs of the appeal (including the application for leave to appeal) with the intention that the parties bear their own costs of the appeal. Catchwords: DEFAMATION – claim in defamation summarily dismissed – whether imputations specified – whether particulars of identification given – whether plaintiff given notice of issue relied on by primary judge – whether imputation capable of arising – decision of primary judge to dismiss defamation claim set aside