In this matter, the applicants were former directors of a company insured by the respondent pursuant to a not-for-profit management liability policy and had been sued by the company and its liquidators in proceedings in the Supreme Court of New South Wales for breach of fiduciary duties and breach of duty of care. The relevant insurance policy included an obligation to advance defence costs. The Insurer had accepted the obligation to pay defence costs incurred by the applicants in defending allegations of breach of duty of care and had paid 70 per cent of the applicants' defence costs pursuant to an allocation clause contained in the policy. A question for determination was whether the respondent Insurer was liable under the policy to pay costs incurred in defending the alleged breach of fiduciary duties. Central to the determination of this issue was whether the applicants were acting for or on behalf of the insured company. Another issue was whether the Insurer was in breach of the duty of utmost good faith in relying upon the allocation clause and whether the applicants were entitled to damages for breach. The Federal Court held that the respondent insurer was liable to pay the whole of the costs of the defence until further order and that the allocation clause was not engaged. The Court refused to make the requested order for indemnity for liability and rejected the utmost good faith and damages claims.
This case involved an application for certain declaratory relief to the effect that claims made in particular class action proceedings were “Securities Claims” within the meaning of a particular Directors and Officers Insurance Policy and that certain Endorsements within that Policy did not apply to those claims. The particular insurance policy contained side C cover. The claim for indemnity arose in the context where settlement sums had been paid to settle two class actions where alleged contraventions of continuous disclosure provisions had been made in circumstances where units in a listed unit trust had been issued pursuant to a product disclosure statement and subsequently on-market. The meaning and scope of the expression, “arising out of, based upon, attributable to” was examined as was a “professional services” exclusion in the policy.
These current proceedings involve claims by a liquidator against directors (current and former) in which allegations of breach of fiduciary duty and breaches of duty of care have been made. Issues concerning an Insurer's liability to advance defence costs in the Supreme Court Proceedings and the proper construction of an allocation clause contained in a Director's and Officer's Insurance Policy were raised in related Federal Court proceedings: see Casey v AIG Australia Limited [2021] FCA 553 (24 May 2021).
These proceedings raised allegations of breach of duty by directors of a mining company. A significant issue related to claims for compensation for alleged insolvent trading from the company’s director. Indemnification issues also arose.
Issues of indemnification of company directors and officers arose throughout this Royal Commission.
This matter dealt with claims for indemnity.
