Marriott v Brine [2013] NSWSC 1589 | Case summary

Mr Brine's bankruptcy and the assignment 7On 23 November 2009, Mr Brine was made bankrupt. On 11 October 2013, the Trustee purported to assign its rights under the insurance policy to Mr Marriott. Although it is called both a "Deed" and a "Notice" (the notice) the notice reads: "The Official Trustee in Bankruptcy ('Assignor') as trustee of the bankrupt estate of Marc Brine ('Bankrupt') GIVES YOU NOTICE that, under the Deed of Assignment dated 11 October 2013 made between the Assignor and Jay Bernard Marriott ('Assignee'), the Assignor has assigned to the Assignee of all its right, title and interest in and to: Any right of indemnity under the Policy of Insurance number 02 Q01 0022855 dated 7 November 2007 ('Policy') issued to, or in place for, the benefit of the Bankrupt for any liability of the Bankrupt arising from the causes of action pleaded in Supreme Court of New South Wales proceedings No 2010/50083 ('Proceedings') commenced by the Assignee. You are hereby irrevocably DIRECTED TO PAY to the Assignee any amounts which you are liable to pay under the Policy to, or for the benefit of, the Bankrupt (or the Assignor) arising from any judgment or order made in the Proceedings." 8On 14 October 2013, the plaintiff issued a notice of claim to QBE, Bankstown Helicopters and Eromssor. They are identical and read: "I, Jay Bernard Marriott of XXX XXXX XXXX, Pitt Town in the State of New South Wales suffered injuries in a helicopter crash on 1st March, 2008. I contend that Marc Brine inter alia was responsible for my injuries. I understand that QBE Insurance (Australia) Limited, Bankstown Helicopters Pty Limited & Eromssor Pty Limited have each agreed to indemnify persons who suffered injuries as a result of the negligence of Marc Brine which caused the accident. Marc Brine has been declared bankrupt. The Official Trustee in Bankruptcy has assigned any entitlement to indemnity to which Marc Brine may have been entitled to me. I hereby give you notice that I make a claim under the insurance policy and also the right to indemnity contained in flight tax invoice dated the 1st March, 2008." 9On 24 November 2012, Mr Brine was discharged from bankruptcy by operation of law. 10So far as policy of insurance is concerned, s 117(1) of the Bankruptcy Act 1966 (Cth) provides: "117 Policies of insurance against liabilities to third parties (1) Where: (a) a bankrupt is or was insured under a contract of insurance against liabilities to third parties; and (b) a liability against which he or she is or was so insured has been incurred (whether before or after he or she became a bankrupt); the right of the bankrupt to indemnity under the policy vests in the trustee and any amount received by the trustee from the insurer under the policy in respect of the liability shall, if the liability has not already been satisfied, be paid in full forthwith to the third party to whom it has been incurred." 11Pursuant to s 117(2) any right to indemnify Mr Brine under the policy rests in the Trustee. 12It is now necessary to briefly examine the relevant provisions the aircraft insurance policy issued by QBE. They are: "Agreement to Insure QBE Insurance (Australia) Ltd ABN XXX XXX XXX ("the Company") in consideration of the payment of the premium and in reliance upon the information provided by the Insured including any proposal which is agreed to be the basis of and incorporated into this Policy, agrees to insure against loss, damage or liability, arising out of an Accident occurring during the Period of Insurance to the extent and in the manner provided in this Policy. Section 3: LEGAL LIABILITY TO PASSENGERS 1. Coverage The Company will indemnify the Insured in respect of all sums which the Insured shall become legally liable to pay, and shall pay, as compensatory damages (including costs awarded against the Insured) in respect of: (a) accidental bodily injury (fatal or otherwise) to passengers whilst entering, on board, or alighting from the Aircraft: ... Section 4: (B) CONDITIONS PRECEDENT APPLICABLE TO ALL SECTIONS It is necessary that the Insured observes and fulfils the following Conditions before the Company has any liability to make any payment under this Policy. ... Claims Procedure 3. Immediate notice of any event likely to give rise to a claim under this Policy shall be given as stated in the Schedule. In all cases the Insured shall: (a) furnish full particulars in writing of such event and forward immediately notice of any claim with any letters or documents relating thereto; ..." (C) GENERAL CONDITIONS APPLICABLE TO ALL SECTIONS ... Assignment 5. This Policy shall not assigned in whole or in part except with the consent of the Company verified by endorsement hereon. (my emphasis added) ... Pilot Cover 11. Sections 2 and 3 of this Policy extend to indemnify jointly and severally with the Insured and pilot approved in accordance with the terms of this Policy provided such pilot observes and fulfils the conditions and is subject to the exclusions of the Policy. In the event of an award being made both against the Insured (Or his estate) and against the pilot (or his estate), the named Insured shall to the extent of his liability be entitled to priority in respect of any indemnity payable by the Company." 13The contract of insurance indemnifies the insured for accidental bodily injury to passengers while on board the helicopter. Mr Marriott was a passenger on board the helicopter when it crashed and it is alleged that he suffered accidental bodily injury. 14On the issue of whether the Trustee can make an assignment of the insurance policy after the bankruptcy is discharged has been considered in Tapp v LawCover Insurance [2013] FCA 35. In Tapp, the brief facts are that the plaintiffs sought to payment of the amount recoverable under whatever right to indemnity their bankrupt former solicitor had against his former insurer, LawCover. The plaintiffs obtained judgment against the former solicitor. The plaintiffs then informed the trustee in bankruptcy of the judgment and requested that the trustee take action against LawCover. LawCover told the plaintiffs to seek court declarations that firstly, the trustee's rights be assigned and secondly, the former solicitor's rights to indemnity has vested in the trustee. The plaintiffs commenced proceedings seeking orders that the trustee assign and transfer the right of the indemnity of the applicants pursuant to s 178 of the Bankruptcy Act 1966 (Cth). 15In Tapp, Rares J held that the discharge of the former solicitor from bankruptcy did not affect any right of indemnity of the plaintiffs that vested in the trustee. His Honour stated at [18] - [20]: "[18] Where a trustee is asked to assign a claim or cause of action vested in him or her, the trustee ordinarily will not be in a position to undertake a detailed analysis of the possible cause or causes of action and their prospects of success. As the Full Court explained in Citicorp 71 FCR at 562B-565E, the trustee must take a practical approach. But, unless the claim or cause of action is frivolous, vexatious, an abuse of process, or has no reasonable prospect of success, if the bankrupt or a third party is willing to prosecute the action and the trustee is not, the trustee ordinarily will assign or sell the right to bring the proceedings, perhaps on terms of receiving some of the proceeds: 71 FCR 563D-564F; see also Re Nguyen; Ex parte Official Trustee in Bankruptcy (1992) 35 FCR 320 (French J). [19] The discharge of the bankrupt from bankruptcy effected under s 153 does not affect the applicants' rights as creditors to prove in the administration of assets vested in the trustee, but unrealised at the time of discharge. As Hill J, with whom Lockhart and Einfeld JJ agreed, said in Tarea Management (North Shore) Pty Ltd (In liq) v Glass (1991) 28 FCR 93 at 99, the mere fact that the debtor is released from a debt does not mean that the debt did not remain a provable debt in the bankruptcy that has been discharged. He held that there is no reason in principle why a creditor cannot lodge a proof of debt after the bankrupt's discharge from bankruptcy. Justice Hill said that the administration of a bankrupt's estate may not have come to an end on discharge, particularly where the discharge arose by operation of the Act at the expiration of three years. [20] Moreover, if, after the discharge of the bankrupt, additional assets that vested in the trustee by force of a provision of the Act, such as ss 58 or 117, came into the trustee's hands, a discharged debt is treated as a liability of the estate that is payable out of it. That is because the release effected by s 153(1) operates only to release the former bankrupt and does not operate to release the estate: Re Kavich; Kavich v Official Trustee in Bankruptcy (1995) 58 FCR 82 at 86D per Hill J. Accordingly, where the bankrupt has a cause of action that vested in the trustee and on which the trustee has not obtained judgment at the time the bankrupt is discharged under s 153, the trustee remains entitled to continue to pursue the action. And, if the trustee recovers money or assets for the estate at any time, he or she must then distribute that money or the proceeds of those assets among the creditors who had debts provable in the bankruptcy. The intervening discharge from bankruptcy and the release of the bankrupt cannot alter the existing rights of the trustee, and the creditors in respect of, at least, the property of the bankrupt that vested in the trustee before the discharge." 16Both parties accept that if there is a cause of action vested in the Trustee, then the Trustee remains entitled to continue to pursue the cause of action even after discharge and that the Trustee may also assign that cause of action. 17However, counsel for QBE submitted that the situation here differs from Tapp because firstly, clause 5 of the policy specifically states that the policy shall not be assigned in whole or in part except with the consent of the company; and secondly, the cause of action or chose of action must exist during bankruptcy and neither existed. 18In support of the first proposition, counsel for QBE referred to Linden Gardens v Tenesta [1994] 1 AC 85 and In re Wright Landau v Trustee of the Property of the Bankrupt [1949] Ch 729. In Linden Gardens, the brief facts are that a contract was in place between Stock Conversion and a contractor M & H to remove asbestos from the property. The contract included a clause which stated "The employer shall not without written consent of the contractor assign this contract" (the clause). Stock Conversion assigned to Linden Gardens a right to recover damages where the losses were incurred by Stock Conversion prior to assignment and after the assignment. 19In Linden Gardens, Lord Browne-Wilkinson at 105 accepted that it was "...at least hypothetically possible" for a contractual prohibition to prohibit assignment of rights under the contract but nevertheless permit assignment of "fruits of performance" such as accrued rights of action or debts. However, his Lordship found it impossible to construe the clause in that way. The clause simply said that each relevant party "shall not without the written consent of [another party] assign this contract". 20Lord Browne-Wilkinson in Linden Gardens also stated that existing authorities that established that an attempted assignment of contractual rights in breach of a contractual prohibition is ineffective to transfer such contractual rights. His Lordship stated at 108: "Therefore the existing authorities establish that an attempted assignment of contractual rights in breach of a contractual prohibition is ineffective to transfer such contractual rights. I regard the law as satisfactorily settled in that sense. If the law were otherwise, it would defeat the legitimate commercial reason for inserting the contractual prohibition, viz., to ensure that the original parties are not brought into direct contractual relations with third parties." 21Counsel of QBE submitted that by contrast, clause 5 in its contract of insurance differs from the clause in Linden Gardens because in QBE's contract the prohibition specifically says that the policy cannot be assigned "in whole or in part". According to QBE, those words indicate an intention to prevent the assignment of particular rights under the policy as well as preventing assignment of the policy as a whole. 22The facts in In re Wright, are that the tenant became bankrupt and the lease became vested in the trustee in bankruptcy. The description of the tenant in the lease included a phrase "where the context so admits include his successors in title". Dankwerts J explained where a clause prohibited a contractor or his "assigns" from assigning rights under the contract, the word "assigns" should not be interpreted as included involuntary assigns. In the matter before his Honour, the language referred to successors in title and his Honour could not see why a trustee is not a successor in title. 23QBE submitted that the clause in the present case is even clearer - it simply says that the policy "shall not be assigned in whole or in part". In other words, it is an unambiguous prohibition on assignment by any person entitled to the contractual rights in question. 24While both these cases are English, the approach taken in them to determine whether the Trustee can assign the rights given under a contract depends on the construction of the contract including the clause prohibiting the assignment. The interpretation of the policy including cl 5 in is arguable and should be permitted to go to trial. 25In relation to the second proposition counsel for QBE submitted that the Trustee does not yet have an accrued right of action or debt under the Policy. There are two reasons for this: (a) On 14 October 2013, the plaintiff made a claim on the policy. QBE submitted that until a claim is made and denied, there is no accrued cause of action for the Trustee to assign. As Mr Brine was discharged from bankruptcy prior to the Trustee making a request for indemnity, no chose in action existed during the bankruptcy. QBE distinguishes the facts from Tapp where the applicants had requested indemnity during the period of the bankruptcy and proceedings were commenced seeking a declaration that LawCover was liable to indemnify prior to the discharge of bankruptcy. (b) Even if a request for indemnity was made (and one now has), the relevant right to indemnity only applies to "all sums which the Insured shall become liable to pay ...as compensatory damages". In other words, there is no requirement under the policy for QBE to provide indemnity to Mr Brine - and therefore no accrued cause of action to assign - unless Mr Brine has been held liable. 26For either of these reasons, counsel for QBE submitted that the parties are not in a situation of dealing with the "fruits of performance"' as Lord Browne-Wilkinson put it, but rather in a situation of purporting to assign a contractual right to request indemnity and have that request considered by QBE, where the right to indemnity itself has not yet arisen. 27So far as QBE's submissions (a) is concerned, the plaintiff relied upon Bazem Pty Ltd v Bureau of Urban Architecture; Bureau of Urban Architecture v Bazem [2010] NSWSC 978. In Bazem Gzell J granted leave for the plaintiff to file an amended statement of claim to join the insurer as a defendant. The brief facts are that a property developer entered into a contract with Bureau for architectural services (Bureau). Bazem. brought proceedings against Bureau for breach of contract. Part of the insurer's draft defence was that the director of Bureau, who was the nominated architect responsible for the provision of architectural services did not disclose the fact that he had entered into a personal insolvency agreement pursuant to Part 10 of the Bankruptcy Act 1966. 28In Bazem, Gzell J referred to a number of authorities including Anjin No 13 Pty Ltd v Allianz Australia Insurance Ltd [2009] VSC 371 where Vickery J stated that the existence of a cause of action was not strictly necessary but a bona fide legal controversy was when considering whether the plaintiff was entitled to join the insurer to the proceedings. Gzell J stated at [41] - [42]: "[41] In Anjin No 13 Pty Ltd v Allianz Australia Insurance Ltd [2009] VSC 371, Vickery J considered an application by a plaintiff to join the insurer of defendant architectural companies as a further defendant. The Supreme Court (General Civil Procedure) Rules 2005 (Vic), rule 9.02 was almost identical with Pt 8 r 2 of the Supreme Court Rules. [42] His Honour held at [74] that Anjin had a very real interest in having the indemnity obligations of Allianz to the architect companies determined. The existence of a cause of action was not strictly necessary but a bona fide legal controversy was. His Honour went on to conclude at [79] that there was a true legal controversy and the plaintiff was entitled to the joinder subject to relevant discretionary considerations: 'In my opinion, the evidence discloses a "true legal controversy" on the crucial question as to the liability of the insurer to indemnify the architect companies. It follows that, in my opinion, and subject to a consideration of relevant discretionary matters for the grant of relief, the plaintiff Anjin is entitled to bring its proposed proceeding against the insurance company and seek the declaratory relief which it has foreshadowed.'" 29Clause 4.3(a) of the insurance policy stipulates that the insured shall furnish full particulars in writing of the event likely to give rise to a claim under the policy immediately. A notice of claim has been given to QBE by the Mr Marriott after the assignment and after Mr Brine was discharged from bankruptcy. While I accept that this case differs from Tapp because in Tapp a notice of claim was given during the period of bankruptcy, it is arguable that a notice of claim may be given after the bankruptcy ends. If that can be established, then there is a cause of action, although it may be problematic as the notice of claim is given after the assignment is made. Nevertheless, it is my view that it is arguable that there is a cause of action or a chose in action. 30So far as submission (b) is concerned, it is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005. As the plaintiff's case against the alleged tortfeasors raises the same facts and circumstances as those relevant to the determination of indemnity under the policy. The insurer should be joined as a party to these proceedings so that all issues can be determined at the same trial. If judgment is entered against Mr Brine, the right to indemnity will arise for determination.

The proposed amendments 36As against Bankstown Helicopters, the plaintiff pleads at [35] to [39.3] of the proposed second amended statement of claim (P2ASC): "35 Further and in the alternative the Second Defendant entered into a contract "the flight record tax invoice" with the First Defendant which included the following term: "Passengers insurance is limited to $5million combined single limit for passengers." Particulars Document entitled "flight record tax invoice" dated 1 March 2008. 36 On a proper construction of the said "flight record tax invoice": 36.1 The Second Defendant agreed to indemnify the First Defendant in the event that any passenger made a claim for personal injuries arising out of the flight. 36.2 Such indemnity was limited to a total of $5,000,000.00 for all claims by passengers. 36.3 Such "flight record tax invoice" was an insurance policy within the meaning of s 10 of the Insurance Contracts Act 1974. 37. All rights and/or benefits, including a right to indemnity pursuant to the said agreement, did by virtue of s 117 of the Bankruptcy Act 1966 (Cth) become vested in the First Defendant's Trustee in Bankruptcy upon the First Defendant becoming bankrupt. 38. The first Defendant's Trustee in Bankruptcy did 11 October 2013 assign to the Plaintiff all its rights and/or entitlements pursuant to the said agreement. Particulars Deed of Indemnity dated 11October 2013 39. In the circumstances pleaded in paragraphs 35-38 inclusive, the Plaintiff says that: 39.1 He is entitled to recover damages from the First Defendant; 39.2 The First Defendant is entitled to be indemnified by the Second Defendant under the agreement in respect of the plaintiff's claim for damages referred to in paragraph 39.1 hereof, to the monetary limit fixed by the said agreement; 39.3 He is entitled to enforce the said agreement referred to in paragraph 39.2 hereof by way of an action against the Second Defendant." 37The same pleading is made against Eromssor at [40] to [44.3] P2ASC. 38The document issued by Bankstown Helicopters was completed and signed by Mr Brine. Attached to it is another document entitled "Terms, Condition and Warranties of Contract for Hire of Aircraft". This is an agreement is made between Bankstown Heliport and the person named in the schedule overpage being Mark Brine. Paragraph [3] of the document is entitled "Undertaking by the Hirer". It is divided into two sub-headings, "Normal Hire" and "Cross Hire". Under "Cross Hire" reads: "The Owner agrees to cross hire the helicopter to the Hirer under the following terms and conditions. ● Payment is to be made in full on completion of the hire. A credit card imprint may be required prior to a period of hire commencing. ● The hire rate is to be on an hourly basis with a minimum hire period of one hour. Time will be measured using Hobbs engine meter with the hire period being the difference between commencement and return times. ● The Hirer agrees to pay any CASA, FAC, AVDATA or Air service fees along with any navigational expenses such as overnight hangarage, airport landing fees, etc. ● The Hirer must have completed the Robinson Safety Course and check ride conduced by Mr Bill Miller/Chief Flying Instructor and have currency under the condition of the Robinson Factory Insurance Policy issues within the Pathfinder Indemnity Company and CASA regulation requirements or any specific requirement(s) that are required under the helicopters insurance policy. ● The Hirer or the Hirer's pilot accepts that there is no personal insurance. ● Passenger's insurance is limited to $5,000,000 combined single limit for passengers and Third Party Liability. ● The Owner is responsible for hull insurance subject to the Hirer conforming with correct operating procedures for the helicopter in accordance with the flight manual and Civil Aviation Safety of Australia law and regulations. ● In the case of an accident or incident due to the negligence of the Hirer, the Hirer will be responsible for paying the excess (deductible) for the hull insurance. This is normally 10% of the agreed hull value as denoted on the insurance policy and is not an agreed sum ● When the helicopter is away from home base, the Hirer is responsible for any damages incurred, in all cases when the helicopter is to be left for an extended period of time (eg overnight) the helicopter must be hangered (if available), rotor blade applied, buddle cover in place and main rotor blades tied down. ● The Hirer also acknowledges that under no circumstances will any other party be allowed to fly the helicopter and that practice autorotation will not be carried out. ● Should a call out by an engineer or staff be required (e.g leaving switches on resulting in a flat battery) then the call out will be at the Hirer's expense." (my emphasis added) 39Counsel for the plaintiff submitted that the agreement itself is a contract of insurance and relied upon Bayswater Car Rental Pty Limited v Hannell [1999] WASCA 34; (1999) 10 ANZ Ins Cas 61-437 in support of this proposition. 40In Bayswater, Bayswater appealed from a District Court decision where it was held that the rental agreement was a contract of insurance. The brief facts are that Hannell's car was damaged by a person who rented a vehicle from Bayswater. Hannell's claim as against the car rental company was based on s 51 of the Insurance Contracts Act 1984 (Cth) and cl 3 of an agreement between Bayswater and the renter. 41Section 51 of the Insurance Contracts Act reads: "51(1) Where: (a) the insured under a contract of liability insurance is liable in damages to a person (in this section called the "third party''); (b) the insured has died or cannot, after reasonable inquiry, be found; and (c) the contract provides insurance cover in respect of the liability; the third party may recover from the insurer an amount equal to the insurer's liability under the contract in respect of the insured liability in damages." 42The rental agreement in Bayswater contained the following relevant clause: "3(a) Not being an insurer; the Owner provides collision indemnity, only during the agreed rental term. (i) On the rented car. (ii) On a court judgment against the renter for third party property damages to $500,000 (cover can be forfeited if the renter proportions blame). (iii) On claims by third parties for bodily injuries per the Motor Vehicle Insurance Trust Act (the MVIT Act)." 43On appeal in Bayswater, Kennedy J at [9] and [10] stated that the critical question then comes down to whether the owner is undertaking itself to indemnify the renter or whether it is undertaking simply to arrange for an outside insurer to indemnify the renter against the risks identified in that clause. His Honour at [10] referred to a passage from MacGillivray and Parkington on Insurance Law, 8th ed (1988) where the learned authors said that a satisfactory definition of "contract of insurance" is elusive, but then they go on to say: "A useful working definition can be derived from that Given by Channell J in Prudential Insurance Co v Inland Revenue Commissioners [1944] 2 KB 658. A contract of insurance is one whereby one party (the "insurer) promises in return for money consideration (the "premium") to pay the other party (the "assured") a sum of money or provide him with some corresponding benefit, upon the occurrence of one or more specified events." 44The Court of Appeal in Bayswater held that all the owner was doing was giving an undertaking that the vehicle was insured by the owner. There was no intention to personally give an indemnity, it was merely to provide a personal body that would give such indemnity. If no indemnity is given then it cannot be a contract of insurance. On that basis, the appeal was upheld and the District Court judgment was set aside. 45QBE submitted that leave ought be refused as the proposed pleading cannot succeed for the following reasons: (a) The clause does not create any promise or obligation. (b) In the alternative, if the relevant clause contains any promise at all, it is a promise to procure insurance. There is no dispute that insurance was procured, being the QBE policy. The fact that it has certain exclusions is a normal commercial incident of insurance policies and does not detract from the proposition that insurance was obtained. The proposed pleading does not suggest that the insurance was something other than that contemplated by the "flight record tax invoice". (c) Even if the clause were capable of being read as some sort of free-standing indemnity (as the plaintiff wishes to plead), that indemnity has not been engaged. Mr Brine has not suffered any loss by reason of his alleged exposure to the plaintiff, nor has he paid any amount to the plaintiff by way of compensation. 46It is trite to say but each case depends on its facts. The wording of the Bayswater clause and the cross hire clause are different. The Bayswater clause commences with the words "Not being an insurer", the owner provides collision indemnity only during the agreed rental terms in three defined circumstances. In these current proceedings the words "Not being an insurer" do not appear. The cross hire agreement is between Bankstown Heliport and Mr Brine. Mr Brine is obliged to make a payment for the use of the aircraft calculated on an hourly basis. Other terms and conditions are set out under the cross hire heading. The relevant one is" Passengers insurance is limited to $5,000,000 combined single limit for passengers and third party liability." The preceding term is that the hirer or the hirers' pilot accepts that there is no personal insurance. The clause after the one referring to the passengers insurance states that the owner is responsible for hull insurance. The next term is that in the case of accident or negligence the hirer is responsible to pay the excess. It can be seen that these four sub clauses all relate to insurance. 47Turning to the working definition, it can be argued that Bankstown Heliport promises in return for money consideration (the premium) to provide Mr Brine with a corresponding benefit, upon the occurrence of one or more specified events. I accept that "negligence" and "personal injury" are not mentioned in the sub clause. Nevertheless, it is arguable that the cross hire agreement is an insurance policy that extends cover to the passengers on board the helicopter. 48Further, QBE submitted that as a discretionary matter, even if the clause operated as a simple indemnity, it is not a contract of insurance to which section 117 applies. In this respect, the position is different from the situation before Rares J in Tapp v LawCover Insurance [2013] FCA 35 and the situation of QBE Insurance (Australia) Ltd on the present motion because any amount recoverable under that contract by Mr Brine should prima facie be treated as part of the bankrupt estate available to all creditors. Without knowing the position of the creditors, the Court ought not sanction a purported assignment of this right by allowing the amendment. I do not agree with this proposition. If the "flight tax record invoice" is found to be an insurance policy, I cannot see why s 117(1) would not apply. 49The result is that leave is granted to the plaintiff to join QBE Insurance as a party. Leave should be granted to the plaintiff to file the proposed second amended statement of claim as against the second and fourth defendants. The proposed second further statement of claim is to be filed within 14 days. QBE Insurance is to file and serve a defence within 28 days. The second and fourth defendants are to file and serve an amended defence within 28 days. Costs of the motion are reserved.

Marriott v Brine

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