Zaki v Better Buildings Constructions Pty Limited [2017] NSWSC 1522

Supreme Court New South Wales

Medium Neutral Citation: Zaki v Better Buildings Constructions Pty Limited [2017] NSWSC 1522 Hearing dates: 18 October 2017 Date of orders: 10 November 2017 Decision date: 10 November 2017 Jurisdiction: Common Law Before: Campbell J Decision: (1) Order the question appearing in order 2 be determined separately and before other questions arising on the application;

(2) Answer the separate question in the following way:

Question: Upon the true construction of s 6(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) does the onus lie upon the claimant to prove that the proposed claim is within time or upon the insurer to prove that it is out of time?

Answer: Section 6(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) does not alter the general law and the onus lies upon the insurer to prove that a claimant's claim against an insured person is out of time under Limitation Act 1969 (NSW).

(3) Under s 5 Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), grant leave to the plaintiff to bring proceedings against GIO General Pty Limited by filing and serving a Further Amended Statement of Claim which is Annexure "C" to the affidavit of Suzy David sworn on 18 September 2017;

(4) The parties' costs of the application are costs in the cause. Catchwords: CIVIL PROCEDURE – Leave to proceed against insurer – Separate question – Onus of proof on question of limitation – Consideration of s 5 Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Legislation Cited: Civil Liability Amendment (Personal Responsibility) Act 2002 NSW Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Limitation Act 1969 (NSW) Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR; [2009] NSWCA 35 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 Blatch v Archer (1774) 98 ER 969 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Hawkins v Clayton t/as Clayton Utz and Co. (1986) 5 NSWLR 109 Kinzett v McCourt (1999) 46 NSWLR 32; [1999] NSWCA 7 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 National Mutual Fire Insurance Co. v Commonwealth of Australia [1981] 1 NSWLR 400 Pullen and Anor v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27 State of New South Wales v Gillett [2012] NSWCA 83 Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 The Commonwealth v Mewett (1997) 195 CLR 471 Wardley Australia Limited v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Texts Cited: New South Wales Law Reform Commission, Third party claims on insurance money – Review of s 6 of the Law Reform (Miscellaneous Provisions) Act 1946, Report No 143 (2016) Second reading speech for the Civil Liability (Third Party Claims Against Insurers) Bill, New South Wales, Legislative Assembly, (Hansard) 3 May 2017 at 2396 Category: Procedural and other rulings Parties: Mr Silwan Georg Zaki (Plaintiff) Better Buildings Constructions Pty Limited (First Defendant) GIO General Pty Limited (Second Defendant) Representation: Counsel: Mr L King SC with Mr CJM Palmer (Plaintiff) Ms N Scoble, solicitor (Second Defendant)