The Christian and Missionary Alliance of Australasia Property Trust v Alameddine

Local Court of NSW|2014-10-02

Background 1On the 14 May 2011, the wall of the plaintiff's property (being the Chinese Alliance Church at 51 Hawkesbury Road, Westmead) was damaged when it was stuck by a motor vehicle. That vehicle was being driven by the first defendant Auday Alameddine ("Alameddine"), and the collision allegedly occurred after Alameddine's vehicle had swerved to avoid a vehicle being driven by the second defendant Xinli Ma ("Ma"). The damage occasioned by this collision is said to be in the order of $40,000. 2On 28 May 2013, the plaintiff commenced proceedings in the General Division of this court against both Alameddine and Ma claiming damages and alleging that one, other or both of them had by their negligence caused the damage to its wall. Those proceedings were allocated file number 2013/145466 ("the first proceedings"). 3On 7 June 2013, Alameddine filed a defence to the plaintiff's claim. On the same day Alameddine filed in this court a Statement of Claim against Ma alleging that damage to his (Alameddine's) motor vehicle occurring in the subject collision had been occasioned as a consequence of Ma's negligence. Those proceedings were allocated file number 2013/175723 ("the second proceedings"). 4It is an agreed fact that neither the plaintiff nor Alameddine have been able to effect service of their originating process upon Ma. Notwithstanding this fact, and irregularly, default judgment against Ma was entered in the first proceedings on 27 August 2013. The entry of this judgment was apparently in reliance upon Ma having been served with the Statement of Claim by post. Given the plaintiff's concession that no such service was in fact effected, the default judgment entered on the 27 August 2013 should be set aside, and as part of the orders to be made today I will do so. 5On a date that is not clear from an examination of the court's file, the plaintiff in the first proceedings filed an Amended Statement of Claim. While that document was not able to be located on the file, it is clear that Alameddine's defence to it was filed on 22 November 2013. 6On 10 March 2014 and in the second proceedings, the plaintiff (Alameddine) filed a Notice of Motion seeking amongst other things that Insurance Australia Limited trading as NRMA Insurance ("NRMA") be joined as a second defendant to those proceedings and that leave be granted for an amended Statement of Claim to be filed. In due course, both of those orders were made. In joining the NRMA, Alameddine relied upon s 51 of the Insurance Contracts Act 1984 (Cth), the fact that the NRMA held a policy of insurance covering Ma at the relevant time, and the fact that Ma could not be located. On 20 June 2014. NRMA filed a Defence to this Amended Statement of Claim in the second proceedings. The overall effect of these orders joining NRMA was that it became an active participant in the litigation. 7In the meantime, and on 8 April 2014 the first and second proceedings were "amalgamated" following the making of an order by his Honour Magistrate Curran pursuant to Uniform Civil Procedure Rule 28.5. That rule provides that if there is a common question to be determined or if the relief claimed arises out of the same transaction or series of transactions or for some other reason it is desirable, the court may order that those proceedings be consolidated or tried together, or one immediately after the other, or that one of them be stayed until the other is determined. I have taken the order made on 8 April 2014 to be one for the proceedings to be tried together with evidence in one to be evidence in the other, rather than for the proceedings to have been consolidated in the strict sense. I have come to this conclusion for the following reasons: (i)The terms of the order made on 8 April 2014 - the word "consolidated" is not used. (ii)The fact that an order was not made allocating a single file number to the proceedings. (iii)The fact that such an order would be more commonly made in less complex cases such as this. (iv)The fact the parties have continued to conduct the litigation upon this basis.

The Motion 8While the NRMA (who it is not disputed held a relevant motor vehicle insurance policy in respect of Ma at the time of the collision) is now an active participant in the second proceedings, it remains presently disengaged from the first proceedings. It is in an effort to remedy this circumstance, and to join the NRMA as a party to the first proceeding that caused the plaintiff to file a Notice of Motion on 28 July 2014. It is that motion, which was heard by me on 28 August 2014, with which these reasons are ultimately concerned. At the hearing on 28 August 2014, Mr Alexander of Counsel appeared for the plaintiff, Mr Fernie for Alameddine and Mr Carolan of Counsel for the NRMA, a non-party in those first proceedings and in effect, the Respondent to the Notice of Motion. 9The orders sought in the Motion as filed were in the following terms: (i)Grant leave to file a further Amended Statement of Claim. (ii)Make the interim relief sought in the further Amended Statement of Claim. (iii)Costs of the motion to be costs in the cause. (iv)Such further or other ancillary orders as the court sees fit. 10On the 28 August 2014, Mr Alexander tendered to the court without objection a Short Minute of Order indicating that the orders he in fact sought in respect of the motion were now in the following terms: (i)Pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), grant leave to the plaintiff to proceed against the third defendant. (ii)Order that Insurance Australia Ltd t/as NRMA Insurance (ACN 000 016 722) be joined as the third defendant. (iii)Grant leave to the plaintiff to file a further Amended Statement of Claim in the form served on the solicitors for the third defendant on 10 July 2014, such claim to be filed in the Registry within fourteen days. Mr Alexander's Short Minute of Order also sought some further orders pertaining to the progression of the matter towards a hearing. Those orders are not relevant for present purposes. Mr Carolan for the NRMA opposes the relief sought. Mr Fernie did not either support or oppose the relief sought and did not seek to be heard in any meaningful way. 11During the course of argument I was referred not only to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 but also to s 51 of the Insurance Contracts Act 1984 (Cth). The relevant sections of each of those pieces of legislation are as follows: Law Reform (Miscellaneous Provisions) Act 1946 Part 4 Attachment of insurance monies Section 6 Amount of liability to be charged on insurance monies payable against that liability. (1) If any person (hereinafter in this Part referred to as the insured) has, whether before or after the commencement of this act, entered into a contract of insurance by which the person is indemnified against liability to pay any damages or compensation, the amount of the person's liability shall on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance monies that are or may become payable in respect of that liability. ... (4) Every such charge as aforesaid shall be enforceable by way of an action against the insurer in the same way and in the same court as if the action were an action to recover damages to all compensation from the insured; and in respect of any such action and the judgment given therein the parties shall, to the extent of the charge, have the same rights and liabilities, and the court shall have the same powers, as if the action were against the insured: Provided that, except where the provisions of subsection (2) apply, no such action shall be commenced in any court except with the leave of that court. Leave shall not be granted in any case where the court is satisfied that the insurer is entitled under the terms of the contract of insurance to disclaim liability, and that any proceedings, including arbitration proceedings, necessary to establish that the insurer is so entitled to disclaim, have been taken. Insurance Contracts Act 1984 (Cth) Section 51 Claims against insurer in respect of liability of insured or third party beneficiary (1) If: (a) the insured or any third party beneficiary under a contract of liability insurance is liable in damages to another person; and (b) the contract provides insurance cover in respect of the liability; and (c) the insured or third party beneficiary has died or cannot, after reasonable inquiry, be found; then the other person may recover from the insurer an amount equal to the insurer's liability under the contract in respect of the liability of the insured or third party beneficiary. (2) A payment under subsection (1) is a discharge, to the extent of the payment, in respect of: (a) the insurer's liability under the contract; and (b) the liability of the insured or third party beneficiary, or the legal personal representative of the insured or third party beneficiary, to the other person. (3) This section does not affect any right that the other person has in respect of the liability of the insured or third party beneficiary, being a right under some other law of the Commonwealth or under a law of a State or Territory. 12As the motion was argued, and no doubt consistent with the position adopted by the NRMA in respect of the second proceedings, Mr Carolan did not object to the NRMA being joined to the proceedings reliant upon s 51 of the Insurance Contracts Act. Although not articulated precisely, I have taken this to be a concession by the NRMA that its being joined to the proceedings would facilitate the resolution of the relevant issues that are in dispute between the parties, and further that its rights are capable of being affected by the litigation. As a consequence of this concession, I am not required to consider further the application of s 51 of the Insurance Contracts Act.

Should leave be granted? - The relevant principles 13The real question for determination in this motion is whether the plaintiff has been able to establish that it would be proper for the court to grant leave as required by s 6(4) of the Law Reform (Miscellaneous Provisions) Act. What then is the purpose of that legislation? In an article by Christine McCarthy, titled "Third Party Access to Insurance policies and Joinder of Insurers" (1999) 11 Insurance Law Journal 46, she observes at page 53 that "the section is designed to permit a claimant for damages direct access to insurance monies". She goes on at page 54 to quote the following extract from CCH, Australian and New Zealand Insurance Report 27-520: The policy behind the legislation is described: ... legal action seeking compensation for injury or loss, will, in the first instance, be brought against the party (allegedly) legally responsible for that injury or loss. However, the legislation recognises that such action may be ineffectual where the insured is insolvent. Accordingly, the legislation provides that insurance moneys, which would in normal circumstances be available to compensate the third party to whom the insured is liable in damages, are to be retained as a separate fund for this purpose ... (T)he legislation is designed for the protection of such third parties and not for the benefit of insurers or insureds. 14In Bailey v NSW Medical Defence Union Ltd (1995) 184 CLR 399 at 446, McHugh and Gummow JJ, when referring to the nature of s 6(4), said that the Law Reform (Miscellaneous Provisions) Act created "a new right with an associated remedy to enforce it". The right is the charge established by s 6(1); the remedy to enforce is the action directly against an insurer authorised by s 6(4). 15Further exposition of the legislative purpose is found in National Mutual Fire Insurance Company Limited v Commonwealth [1981] 1 NSWLR 400, where Moffitt P said at 403 (my emphasis): The legislative purpose of s 6 is to provide for the person to whom the insured is liable direct access to the insurance fund, in those cases where enforcement might be frustrated unless such direct access were available. This description of the purpose of the legislation was cited with approval by Sheller JA in New South Wales Medical Defence Union v Crawford (1993) 31 NSWLR 469, and more recently with apparent approval by Spigelman CJ in Kinzett v McCourt [1999] NSWCA 7; (1999) 46 NSWLR 32 at [78]. 16In Oswald v Bailey (1987) 11 NSWLR 715, Kirby P (as he then was) made the following observations in relation to the section (at 717-718, my emphasis): The provision in question is designed to permit direct access by a claimant for damages or compensation to a fund of insurance moneys provided in consequence of a contract of insurance into which the insured has entered with an insurer. Normally the law of privity of contract would preclude the claimant's direct access to such moneys. The claimant's only claim would lie against the alleged tortfeasor. In a legislative stroke, more bold because of its departure from the normal rule that insurance is an extraneous and separate matter between the insured and its insurer, the Law Reform (Miscellaneous Provisions) Act 1946, s 6 (the Act) provides a scheme for the attachment of insurance moneys for the benefit of those having certain claims upon the insured. To preventunnecessary or inappropriate claims, the Act provides that the leave of the Court is necessary before any such direct action against the insurer may be commenced. But once commenced, the fictions of indemnity are replaced by s 6(4) of the Act. The parties are then declared to have the same rights and liabilities, and the court the same powers, as if the action were against the insured. The very uniqueness of this statutory provision speaks against a narrow construction of it. So too does the beneficial object which lies behind it. The insured may disappear, die or, if a company, be wound up. Such events could, in the past, stultify the claimant's prospects of practical recovery. Out of recognition of the modern reality of insurance, the need to protect those with claims for damages or compensation, and the ready ability, normally, to trace insurers entering into contracts of insurance, provision has been made for a direct action against the insurer. The claimant must bring himself within the terms of s 6 of the Act. But if the claimant does, the benefit is secured of a charge on all insurance moneys that are or may become payable in respect of the insured's liability. 17The purpose of the leave application is "to protect insurers from unwarranted direct action by claimants upon their insureds"; see Tzaidas v Child [2004] NSWCA 252 per Giles JA at [17]. More recently the Court of Appeal in Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213, Campbell JA (Allsop P and Meagher JA agreeing said at [52]: In an application for leave under s 6 Law Reform (Miscellaneous Provisions) Act the question is whether the court should permit a litigant to commence an action against a party who, in the absence of such leave, the litigant has no right to sue. 18In Bede Polding College v Limit (No. 3) Ltd [2008] NSWSC 887, Grove J identified three matters that a plaintiff must demonstrate for leave to be granted. They are : (i)That there is an arguable case against the insured (ii)That there is an arguable case that the policy responds (iii)That there is a real possibility that if judgment is obtained the insured would not be able to meet it. 19In Bede Polding, Grove J relied upon the summary judgment test identified in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 as determining the question of whether an "arguable case" existed. In Energize Fitness Pty Ltd v Vero Insurance (supra), the Court of Appeal, while considering that Grove J had applied the wrong test on the question of "arguable case", did not otherwise disagree that the questions identified by his Honour were those requiring consideration. Indeed these same questions were those posed by Priestley JA, in Oswald v Bailey (supra) and accepted as "uncontroversial" by Barrett J in Zhang v Minox Securities Pty Ltd [2008] NSWSC 689 at [11]. 20An important consideration on the question of whether leave will be granted or refused is whether the insured is available to be sued and solvent. That is, is the insured a "viable defendant?" In Kinzett v McCourt (supra) Spigelman CJ, at [76], put it this way: "The practice under s 6(4) is to refuse leave to proceed against an insurer, wherever the insured is a viable defendant". 21I should also have regard, in determining the question of whether leave ought be granted to general principles concerning the grant of leave to join parties to proceedings. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1991) ASC 56-033, Rogers CJ in Comm Div observed that where a discretion to grant leave is available, the court: ... should take whatever course is most conducive to a just resolution of the dispute between the parties, but having regard to limiting as far as practicable, the costs and delays of the litigation. In my view, this approach is entirely consistent with modern notions of case management and the overriding purpose provisions of the Civil Procedure Act, being the just, cheap and quick resolution of the real issues in dispute between the parties.

The evidence and the parties' submissions 22In this case, both Messrs Alexander and Carolan agree that there is an arguable case against the insured Ma and that there is a policy held by the NRMA which responds. The real and indeed only live issue is whether there is a real possibility that, if judgment were obtained, the insured (Ma) could not meet it. Mr Carolan's submission is to the effect that there is a perfectly good defendant available and that the circumstances of this case reveal only that the plaintiff has not taken sufficient steps to bring that defendant into the proceedings. Put simply and in the vernacular Mr Carolan argues that the plaintiff has not taken enough steps to "bring Ma to the table". He says that Ma is a perfectly viable defendant who, if proper enquiries are made, could be located and served. Mr Alexander on the other hand says that his client, the plaintiff, has done all it reasonably could to locate Ma, that it has sought to do so for a considerable time and that it has been unsuccessful. Mr Alexander urged me, to consider the matter by reference to "substance over form." I took this to be a submission to the effect that I should adopt a purposive approach to the issue for determination. In this regard I note the comments of Kirby P in Oswald v Bailey at page 725 where his Honour observed that: ...what amounts to a perfectly good common law defendant must be considered in the light of the purpose of the section, drawing upon what Moffitt P said in National Mutual Fire. In the same case, at page 726, Kirby P described one of the major purposes of the Act as: ... to provide ease of access by claimants for damages and compensation to a fund which it would otherwise be difficult for them to access. The discretion to grant or refuse leave under s 6(4) should not be exercised in such a way as to require persons such as the appellants to commence a number of actions to recover what they could recover in one action under s 6 of the Act, enforcing the charge for which the Act provides. 23The resolution of the issue between the parties as to whether there is a "viable defendant" requires a consideration and assessment of those steps taken by the plaintiff to locate Ma and have him engage in the proceedings. In this regard Mr Alexander relied upon the evidence contained within the affidavit of John Hodgson-Williams sworn 28 July 2014. That affidavit annexed a previous affidavit sworn by Mr Hodgson-Williams on 7 July 2014. His affidavit provided the Court with the following relevant evidence: (i)A copy of the Statement of Claim as initially filed was forwarded to Ma at an address in Station Street, Homebush on 13 May 2013. (ii)The Amended Statement of Claim was forwarded to Ma at that same address on or about 25 October 2013. (iii)On 5 March 2014 the plaintiff's solicitors received notice of non-service from the Court in respect of the Amended Statement of Claim which had been forwarded to Ma. (iv)On 12 March 2014 the Plaintiff's solicitors requested its mercantile agents Integrated Recovery Services (Aust) Pty Ltd to commence location enquiries in respect of Ma. Those enquiries were completed on 9 May 2014 and a copy of the report received by the plaintiff's solicitors from Integrated Recovery Services (Aust) Pty Limited is annexed to Mr Hodgson-Williams affidavit. That final report indicated that the mercantile agents had been unable to locate a current address for Ma. It indicated that enquiries had consisted of electronic white pages and telephone number enquiries, electoral roll enquiries, database enquiries, internet enquiries, Veda enquiries, agent telephone enquiries and company database enquiries. Enquiries were also conducted of the last known address of Ma in Station Street, Homebush. He was not able to be located. Enquiries were also made in respect of that particular address and an historical listing for a person named S Cheung was indicated, along with a telephone number being 02 9xxx xx38. That telephone number was called and constantly rang to message bank. Further enquiries were made in respect of that subject telephone number and a listing was revealed for a person named "Y Lin" at the Station Street, Homebush address. Further enquiries were conducted in respect of the address however no reference to Ma was located. A telephone call was made to a mobile phone number 04xx xxx 674; a male with an Asian accent answered the phone, however the call was terminated when the mercantile agent asked to speak with Ma. Enquiries of residents at the last known address of Ma have not revealed his whereabouts. 24In addition and at the same time as the steps set out above were being undertaken to locate Ma, other steps were being taken with a view to effecting service upon Ma. Those steps were taken in April 2014 by the plaintiff's solicitors' process servers Australian Legal Support Group Pty Ltd (t/as Express Mercantile). Unfortunately they were to no avail. In all, six attendances were made at the last known address of Ma during April and he was not able to be found. The last such contact was on 28 April 2014 at 8.02pm when a process server attended at the address and spoke with a female person who identified herself as Vera Lin. Ms Lin advised that she knew Ma as he had been subletting with a friend of hers a few years ago at another property. She said that she did not know where he worked but that he used to be a fisherman so he was often travelling. She confirmed that Ma was Chinese and spoke Mandarin. She provided a mobile number for him being 04xx xxx 664 (being the same mobile phone number which had been called by the mercantile agents previously). When Ms Lin made the call to that number (in the mercantile agent's presence) it remained unanswered. She had no knowledge of Ma's current whereabouts. She also stated that Ma had never lived at the address but that he had used it as a mailing address. She said that she had initially known him through her church but that she had not seen him there for some years. Indeed she told the process server that she had not seen Ma since 2006 to 2007, being some years prior to the collision giving rise to the cause of action. 25I have also considered and had regard to the affidavit material relied upon in the second proceedings at the time that NRMA was joined in those proceedings. The affidavit of Kirsty Henshall, Solicitor (who acts for Alameddine) also deposes to the difficulties she had in locating Ma and her efforts to do so, prior to the order being made joining the NRMA. These efforts included the obtaining of a NSW Transport Roads and Maritime Services search of the number plate of the vehicle being driven by Ma at the time of the collision. A certificate pursuant to s 257 of the Road Transport Act 2013 was issued on 20 November 2013. This certificate revealed a new address for Ma in Pemberton Street, Parramatta. Thereafter, on 28 November 2013, agents engaged by Ms Henshall attended at those premises and were told by a female that Ma was a friend of her husband but that he had never resided at the premises. They were further advised that she had no knowledge of his whereabouts. Again, this time at an address other than that which he had initially given, Ma was unable to be located. It seems to me appropriate, to take into account in determining the question of leave, this further evidence in the second proceedings concerning Ma's inability to be found.

Conclusion 26I have concluded on balance that given both the unsuccessful efforts made by the plaintiff to engage with Ma in the first proceedings and the similarly unsuccessful efforts of Alameddine in the second proceedings that there is a real possibility that if judgment were obtained against Ma then it would remain unsatisfied. The effect of this conclusion is that in my view, and in the exercise of my discretion, the orders sought by the plaintiff should be made. I have finally come to this conclusion having regard to the following factors each of which should be considered in combination with the other: (i)It is agreed between the parties that there is an arguable case against Ma, and that the NRMA holds an insurance policy which responds. (ii)It is now some 3½ years since the cause of action arose and despite the efforts of various parties to the proceedings to which I have made reference, Ma has not been able to be located. (iii)There is a real possibility that, using the words of Moffitt P in National Mutual Fire Insurance Company Limited (supra) that "enforcement might be frustrated unless such direct access were available". (iv)Enforcement need only possibly be frustrated; such frustration need not be certain. (v)I have borne in mind the purpose of the Act and the matters set out by Kirby P in Oswald & Another v Bailey & Others (supra) at [16] hereof, particularly those going to the avoidance of a narrow construction of the legislation and its intended beneficial purpose. As specifically indicated by Kirby P, and as has occurred here, one of the circumstances that may give rise to the application of the section and the granting of leave is where an insured disappears. (vi)I have observed that the NRMA is already engaged in the "amalgamated proceedings." There will be no further cost or disadvantage to them in being further engaged in the action. The proceedings are being heard together. (vii)I have also had regard to s 56 of the Civil Procedure Act 2005 and the overriding purpose set out therein, being the just, cheap and quick resolution of the real issues in dispute between the parties. In my assessment the making of the orders proposed will advance that purpose.

Orders 27The orders of the court will be as follows: (i)Pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), grant leave to the plaintiff to proceed against the third defendant. (ii)That Insurance Australia Limited t/as NRMA Insurance (ACN 000 016 722) be joined as the third defendant. (iii)Grant leave to the plaintiff to file an Amended Statement of claim in the form served on the solicitors for the third defendant on 10 July 2014, such claim to be filed in the Registry within 14 days. (iv)That the default judgment entered against the second defendant on 27 August 2013 be set aside. (v)That costs of the motion are to be costs in the cause. I will hear the parties further on directions to be made with a view to advancing the matter to hearing. Magistrate C O'Brien Downing Centre Local Court 2 October 2014

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2014

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