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).
This appeal included a consideration of an insured’s duty of disclosure and the application of section 48 of the Insurance Contract Act and was an appeal from the decision of Jagot J in Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200. Both the appeal and the first instance decision are referred to under the Banking and Finance Practice Area on this website.
This case included a consideration of an insured’s duty of disclosure and of the application of section 48 of the Insurance Contract Act. The matter is further referred to under the Banking and Finance Practice Area on this web-site.
This case involved an analysis of the scope of an insurer’s liability under a statutory insurance policy in circumstances where the policy document was not in evidence. The matter concerned an employee exposed to asbestos dust
This case dealt with a contract of insurance where an insurer had denied a claim for insurance cover in consequence of a fire at a property on the basis of alleged non-disclosure. Questions arose as to whether matters of alleged non-disclosure were material from the underwriter’s point of view and claims for the cost of reinstatement against indemnity.
This matter raised issues of indemnity in circumstances of alleged non-disclosure concerning the use of leased premises and where those premises had been damaged.
This matter concerned an application to join an Insurer to proceedings when no claim had been made during the term of policy. Issues such as the application of section 54 of the Insurance Contracts Act 1984 (Cth) and section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) were raised.
This matter concerned issues of indemnity and disclosure.
This matter raised indemnity issues and adequacy of disclosure to an Insurer.
This matter raised indemnity issues under a Management Liability Insurance Policy.
This matter raised issues concerning the application of an insurance policy.
This matter involved a dispute concerning the application of a professional indemnity insurance policy.
