QBE INSURANCE (AUSTRALIA) LTD v LOIS NOMINEES PTY LTD and the persons detailed in the Schedule attached to the Appeal Notice (Civil)

[2012] WASCA 186

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Declaratory relief
3. › Declaration as to private contractual rights of third parties
4. › Third party to liability insurance contract seeking declaration that insurer liable to indemnify insured
5. › Whether third party has standing
6. › Whether declaration has utility
7. › Supreme Court Act 1935 (WA), s 25(6)
1. Practice and Procedure
2. › Declaratory relief
3. › Utility of declaration
4. › Whether declaration binding on insurer and trustee in bankruptcy in subsequent proceedings
5. › Whether abuse of process doctrine renders declaration practically binding
6. › Bankruptcy Act 1966 (Cth), s 117
1. Practice and Procedure
2. › Summary judgment
3. › Whether claim so obviously untenable that it cannot possibly succeed
4. › Whether proceedings vexatious or abuse of process
5. › Rules of the Supreme Court 1971 (WA), O 16 r 1
1. Practice and Procedure
2. › Res judicata and estoppel
3. › Co-defendants
4. › Whether res judicata estoppels apply as between co-defendants
5. › Conditions for res judicata between co-defendants
6. › Mutuality requirement

Quick Take

A third party claimant against a bankrupt insured may arguably seek a declaration that the insurer is liable to indemnify the insured, with utility potentially arising from the abuse of process doctrine in subsequent proceedings. However, the joinder of the trustee in bankruptcy as a party may be necessary to give the declaration practical utility. The conflict between Interchase (majority) and Ashmere Cove on the utility of such declarations remains unresolved at the highest level.