Energize Fitness Pty Ltd v Vero Insurance Limited

[2012] NSWCA 213

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Joinder of parties
3. › Joinder of insurer
4. › Leave under s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
5. › Test for 'arguable case'
6. › Whether test requires evaluation of evidence or merely acceptance of pleaded facts
7. › Whether General Steel test applies
8. › Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6(4)
1. Insurance
2. › Liability insurance
3. › Joinder of insurer as party
4. › Charge on insurance moneys
5. › Whether insured manufactured defective equipment
6. › Whether alternative manufacturer was subsidiary of named insured within policy definition
7. › Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6
1. Words and Phrases
2. › Arguable case
3. › In context of application for leave to join insurer under s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Quick Take

The 'arguable case' test for leave to join an insurer under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) requires evaluation of the evidence supporting the pleaded case, not merely acceptance that facts have been pleaded which, if true, would provide a remedy. The General Steel summary dismissal test does not apply to s 6(4) applications. The evidentiary and persuasive onus is on the applicant for leave, not on the insurer. Bede Polding College v Limit (No 3) Limited should not be followed insofar as it adopted the General Steel test.