Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1610

Supreme Court New South Wales

Medium Neutral Citation: Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1610 Hearing dates: 5 November 2019 Date of orders: 20 November 2019 Decision date: 20 November 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Refuse leave for the joinder of Lawcover Insurance Pty Ltd and dismiss the notice of motion filed 16 August 2019 with costs. Catchwords: CIVIL PROCEDURE — Parties — Joinder — Of cross-defendant – application for joinder of Lawcover by cross-claimants – where Lawcover is the insurer of a law firm under a "run-off" professional indemnity insurance policy – where the law firm was instructed by the applicant to draft the relevant trust deed and to act on the conveyance of the relevant property – whether the solicitors allegedly failed to give certain advice to the applicants including to lodge with the Land Titles Office a copy of the relevant trust deed or to lodge a caveat over the relevant property – whether discretion under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) enlivened to permit the joinder of Lawcover – held that the proposed third cross-claim does not adequately establish the existence of a reasonably arguable cause of action against Lawcover – notice of motion dismissed Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), ss 4, 5 Corporations Act 2001 (Cth), ss 9, 46 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6 Legal Profession Uniform General Rules 2015 (NSW), r 78(9)(a) Real Property Act 1900 (NSW), s 82(2) Cases Cited: Amadio Pty Ltd v Henderson (1998) 81 FCR 149; [1998] FCA 823 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 DSHE Holdings Ltd (receivers and managers appointed) (in Liq) v Abboud; National Australia Bank Limited v Abboud [2017] NSWSC 579 Energize Fitness Pty Ltd v Vero Insurance Ltd [2012] NSWCA 213 Garzo v Liverpool/Campbelltown Christian School Limited [2011] NSWSC 292 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Hastie Group Ltd (in liq) v Bourne; Hastie Group Ltd (in liq) v Moore [2017] NSWSC 709 Hoxton Park Residents Action Group Inc v Liverpool City Council [2012] NSWSC 1026 Mrdajl v Southern Cross Constructions (NSW) Pty Ltd (In Liq) [2018] NSWSC 161 Ritchie v Advanced Plumbing and Drains Pty Ltd [2019] NSWSC 1028 Rushleigh Services Pty Ltd v Forge Group Ltd (in liq) (receivers and managers appointed) [2018] FCA 26 Wayland v Bird [2017] NSWCA 26 Texts Cited: M Leeming, The Statutory Foundations of Negligence (1st ed, 2019, The Federation Press) Category: Procedural and other rulings Parties: Sergie Sergienko (Plaintiff) AXL Financial Pty Ltd (First Defendant) Oliver Roths (Second Defendant) Roths Holdings Australia Pty Ltd (Third Defendant) IWC Industries Pty Ltd (Fourth Defendant/Applicant on motion) DK Excavation and Concreting Pty Ltd (Fifth Defendant/Applicant on motion) Lawcover Insurance Pty Ltd (Respondent to motion) Representation: Counsel: I King (Fourth and Fifth Defendants) D Lloyd (Respondent to motion)