Ritchie v Advanced Plumbing and Drains Pty Ltd [2019] NSWSC 1028

Supreme Court New South Wales

Medium Neutral Citation: Ritchie v Advanced Plumbing and Drains Pty Ltd [2019] NSWSC 1028 Hearing dates: 20 August 2018 Date of orders: 16 August 2019 Decision date: 16 August 2019 Jurisdiction: Common Law Before: Campbell J Decision: (1) Grant leave to the plaintiff to proceed against Insurance Australia Limited trading as CGU Insurance pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW);

(2) Grant leave to the plaintiff to file and serve an Amended Statement of Claim to include a claim for relief against Insurance Australia Limited Trading as CGU Insurance under s 4 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). Catchwords: CIVIL PROCEDURE – Leave to proceed against insurer – defendant in liquidation – third party claims against insurers – arguable case that policy responds to liability – construction of insurance contracts – whether insurer has validly disclaimed liability – held arguable case against defendant – held arguable case that insurance policy responds to liability – held insurer has not discharged onus disclaiming liability – held leave to proceed against insurer granted.

CONTRACT LAW – Interpretation of insurance contracts – exclusion and limitation clauses – construing ambiguous words – whether general expression "spark producing equipment" should be read down – held general expressions to be read in context – held expression confined to include only specified equipment – held general expression to be read down. Legislation Cited: Civil Liability Act 2002 (NSW), s 5B Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), s 5 Corporations Act 2001 (Cth), s 500 Cases Cited: Andar Transport Pty Ltd v Brambles Limited (2004) 217 CLR 424; [2004] HCA 28 Australian Aviation Underwriting Pty Ltd v Henry (1988) 12 NSWLR 121 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA HCA 13 Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; [1986] HCA 82 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Pty Ltd (2014) 251 CLR 640; [2014] HCA 7 General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Lend Lease Real Estate Investments Limited v GPT RE Limited [2006] NSWCA 207 McCann v Switzerland Insurance Australia Limited & Ors (2000) 203 CLR 579; [2000] HCA 65 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd and Anor (2015) 256 CLR 104; [2015] HCA 37 Murphy, McCarthy & Associates Pty Limited v Zurich Australian Insurance Limited [2018] NSWSC 627 Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 162; [2006] HCA 19 Watts v Perry [1971] 1 NSWLR 73 Wickstead v Browne (1992) 30 NSWLR 1 Zaki v Better Building Constructions Pty Ltd [2017] NSWSC 1522 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)