Authors: Mark Brookes, Partner and Tom Pepper, Solicitor
A recent New South Wales Court of Appeal decision provides a useful illustration of how courts will have regard to an insurance policy’s overall construction in interpreting the meaning of key phrases and clauses.
In Malamit Pty Ltd v WFI Insurance Ltd 1 the court found that a claim made against the insured by a company wholly owned by the insured’s sole director was still a claim made by a ‘third party’ as required by the policy’s insuring clause. Ultimately the claim was excluded under a different clause however the case nonetheless serves as a reminder for insurers to be mindful of the importance of the overall construction of their policies to avoid inadvertently providing cover for unintended risks.
Handed down in March 2017, the decision of Manitowoq Platinum Pty Ltd & Ors v Wesfarmers Federation Insurance Ltd (WFI) (Manitowoq Platinum) is of particular interest as the District Court of Western Australia considered whether an insured’s breach of statutory obligations could form the basis to refuse indemnity under a Commercial Risk Policy. The case also looks at whether the leading Queensland case and related authority around Kim v Cole & Ors, should apply.
Contact: Katherine Hayes, Senior Associate and Greg Stirling, Associate
The 2008 global financial crisis resulted in countless claims and litigated proceedings against financial advisors and their financial services licensees for losses associated with pre-GFC financial advice. With the effluxion of time, those claims have started to dry up, but for proceedings commenced in the last few years, plaintiffs and defendants are starting to turn their minds to whether the claims brought in litigated proceedings are statute barred.
Contact: Stephen White, Partner and Milton Latta, Senior Associate
It is often the case in multi-party litigation that one party will seek cover under another party’s insurance policy based on an insurance covenant contained in an agreement between the parties. Such claims are often contentious, due in part to the wide variations in drafting from one contract to another, and the consequential difficulty for the courts in setting down guiding principals for interpreting insurance covenants.
Contact: Glenn Biggs, Partner
As many of Carter Newell’s heavy transport and logistics clients are well aware, the Heavy Vehicle National Law seeks to enforce a proactive sharing or ‘Chain of Responsibility’ approach to managing road risks, including fatigue management. Putting aside how one should assess the ‘reasonableness’ of their due diligence in ensuring safe transport, what is paramount is that parties beyond the transport operator (those parties with relevant control or influence) must ensure their contribution to the process is not in breach of applicable laws.