Ace Insurance Limited v Limit (No 3) Limited - [2010] NSWCA 54

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Ace Insurance Limited v Limit (No 3) Limited [2010] NSWCA 54

FILE NUMBER(S):
2009/298575

HEARING DATE(S):
23 March 2010

JUDGMENT DATE:
23 March 2010

EX TEMPORE DATE:
23 March 2010

PARTIES:
Ace Insurance Limited (ACN 001 642 020) (Applicant)
Limit (No 3) Ltd (First Respondent)
Oak Dedicated Limited (Second Respondent)
The Underwriter Insurance Company (Third Respondent)
GE Frankona Reinsurance Limited (Fourth Respondent)

JUDGMENT OF:
Allsop P Macfarlan JA

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
50191/2005

LOWER COURT JUDICIAL OFFICER:
Rein J

LOWER COURT DATE OF DECISION:
30 September 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Limit (No 3) Limited v ACE Insurance Limited [2009] NSWSC 514

COUNSEL:
A J Meagher SC; T W Marskell (Applicant)
S R Donaldson SC; H J A Neal (Respondents)

SOLICITORS:
Wotton & Kearney Insurance Lawyers (Applicant)
Norton Rose (Respondents)

CATCHWORDS:

LEGISLATION CITED:

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
The application for leave to appeal is refused with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298575
ALLSOP P
MACFARLAN JA
Tuesday, 23 March, 2010

ACE INSURANCE LIMITED v LIMIT (No 3) LIMITED

Ex tempore Judgment

JUDGMENT OF THE COURT delivered by ALLSOP P: This is an application for leave to appeal from part of the orders made by a judge in the Commercial List in relation to a dispute between two groups of insurers. It is unnecessary to deal with the matter in detail. The description of the matters is set out fully in the parties' written submissions.
The Court is of the view that it would not be of ultimate utility to hive off one issue dealt with by the primary judge on liability and have an appeal structure based on that with other issues of liability outstanding, although it is possible that if the applicant were successful on the appeal that would be the end of the case and, if that were the case, it can be said that the controversy would be wholly resolved.
Nevertheless, the issues involved are ones of significant importance and novelty and are of a character that could well be such as to attract special leave to appeal. In those circumstances, the parties would be left in the position of unresolved liability issues in the second stream of appeal which might be an alternative ground for the applicant to succeed.
Neither party wishes to bring forward all liability questions and in the absence of that willingness we do not see there to be convenience or ultimate real advantage in bringing forward only one or two issues of those dealt with by the primary judge.
For those reasons, the application for leave to appeal is refused. The applicant is to pay the respondent's costs.
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LAST UPDATED:
1 April 2010

Details

AGLC: Ace Insurance Limited v Limit (No 3) Limited [2010] NSWCA 54
Case: [2010] NSWCA 54
Decision Date: 23 March 2010

CaseChat Overview and Summary

This matter concerned an application for leave to appeal from orders made by a judge in the Commercial List, arising from a dispute between two groups of insurers. The Court of Appeal of New South Wales was asked to consider whether to grant leave to appeal on a specific aspect of the primary judge's decision regarding liability.

The central legal issue before the Court of Appeal was whether it was appropriate to grant leave to appeal on a discrete issue of liability, while other liability issues remained unresolved at the primary level. The Court considered the potential utility of such an appeal, particularly if success for the applicant would resolve the entire controversy, but also weighed this against the fact that other liability issues would remain outstanding.

The Court reasoned that while it was possible for an appeal on the single issue to resolve the entire dispute, it was not of ultimate utility to sever one issue of liability for appeal when other significant and novel liability issues were still to be determined. The Court noted that neither party wished to bring forward all outstanding liability questions for appeal. In the absence of such willingness, the Court concluded that there was no convenience or real advantage in proceeding with an appeal on only a limited number of issues. Consequently, the application for leave to appeal was refused.

Orders

Orders of the court

The application for leave to appeal is refused with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT delivered by ALLSOP P: This is an application for leave to appeal from part of the orders made by a judge in the Commercial List in relation to a dispute between two groups of insurers. It is unnecessary to deal with the matter in detail. The description of the matters is set out fully in the parties' written submissions. The Court is of the view that it would not be of ultimate utility to hive off one issue dealt with by the primary judge on liability and have an appeal structure based on that with other issues of liability outstanding, although it is possible that if the applicant were successful on the appeal that would be the end of the case and, if that were the case, it can be said that the controversy would be wholly resolved. Nevertheless, the issues involved are ones of significant importance and novelty and are of a character that could well be such as to attract special leave to appeal. In those circumstances, the parties would be left in the position of unresolved liability issues in the second stream of appeal which might be an alternative ground for the applicant to succeed. Neither party wishes to bring forward all liability questions and in the absence of that willingness we do not see there to be convenience or ultimate real advantage in bringing forward only one or two issues of those dealt with by the primary judge. For those reasons, the application for leave to appeal is refused. The applicant is to pay the respondent's costs.**********

Ratio Decidendi

Legal Principle Established

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