Construing exclusions in an insurance contract

The policy should be read on the assumption that the exclusions removed claims that would otherwise be within cover. Accordingly, the claim by the trustee against one of the named insured was brought by a “third party” within the insuring clause

Read More→

Valuation evidence: the requirements for admissibility

Read More→

Abuse of process

  1. CGU Insurance Ltd v Watson [2007] NSWCA 301 at [40]:

The Supreme Court has an inherent jurisdiction to prevent abuse of its procedures, and may stay or dismiss proceedings the bringing or continuance of which is an abuse of process. Even if principles of res judicata or Anshun estoppel do not apply, there may be abuse of process in relitigating an issue decided against a party in previous proceedings.

Construing statutes: grossly unfair, perverse and anomalous – not relevant

Read More→

Legislative mistakes


Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100
  1. A definition using the term “means” is generally to be understood as exhaustively defined by what follows. Because the definition of “sentence” has 11 paragraphs, which include many kinds of order which would not ordinarily be thought of as part of the sentence, the general rule should apply and the language adopted should be treated as exhaustive. In accordance with the authorities discussed in Roslyndale, the phrase “an order for the payment of costs” would not ordinarily be understood to include the refusal to order payment of costs. No reason was put forward not to give that language its ordinary meaning (as there was in the case of s 5AA). Accordingly, there is no right of appeal to a prosecutor under s 5D with respect to the refusal to order costs. For this purpose Roslyndale remains good law.
  2. As an aside, a literal reading of par (h) in the definition of “sentence” would give it no content. When the paragraph was inserted in its present form in 2004, [6] the power to award costs was to be found in s 253 of the Criminal Procedure Act, which was then in Ch 4, Pt 5, Div 3. Section 253 was repealed in 2006, [7] by legislation which inserted s 257B and s 257C. However, those provisions were placed in a new Div 4, not Div 3; the definition of “sentence” in the Criminal Appeal Act was not amended.
  3. Despite the absence of a consequential amendment, the definition of “sentence” should be understood to refer to orders for the payment of costs made under Div 4 of Pt 5 of Ch 4 of the Criminal Procedure Act. This is a clear case where the drafter has made a mistake for a reason which is readily identifiable. The Court should read the definition in accordance with its former operation and clear intention. [8]