Huybers v Gardner Ekes Lawyers

HIS HONOUR: This is an application by the plaintiffs for leave to join the named defendants’ insurer as a defendant to the proceedings under the provisions of sections 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (“the Act”). The named defendants are an incorporated law practice and the principal of that practice. As it turns out, the corporation has been deregistered, and the principal is now deceased. The compulsory insurer is of course Lawcover Insurance Proprietary Limited who are represented before me by Ms Byrne, solicitor, and, subject to limitations consistent with the scheme of the Act and specified with more particularity in correspondence inter partes, Lawcover consents to the making of orders under the Act.

There is also a proposed amended statement of claim drafted in anticipation of these orders being made, which refines the narrative of material facts upon which the plaintiffs wish to rely to make good their claim. Ms Byrne also consents to leave being granted for the amended statement of claim to be filed and served and for the plaintiffs to rely upon it in the prosecution of the action.

Given that the matter ultimately involves the exercise of the Court’s discretion I should simply record that the conditions generally recognised as informing the exercise of the Court’s power under the 2017 legislation as recently summarised by Nixon J in the matter of Clear Skies Corporation Proprietary Limited (in liq) [2025] NSWSC 1467 appear to be satisfied by the evidence relied upon by the plaintiff. That is to say that the plaintiff has an arguable case against the former legal practice in professional negligence. The evidence strongly suggests that the estate of the principal solicitor is not a good common law defendant and there is an arguable case that Lawcover’s policy will respond to any liability in the former law practice established by evidence at the trial.

Given Lawcover’s consent, there is no reason for me to exercise any residual discretion against granting the relief sought, and I propose, by consent, to make orders in accordance with the form of short minutes of order that Mr Raftery of Counsel, appearing for the plaintiffs, has handed up, signed by me and to which the Court’s seal may be affixed.

I therefore make the following orders: