Bechini v IUS Pty Limited (ABN 93 003 359 279 (In Liquidation) [2019] NSWSC 427

Bechini v IUS Pty Limited (ABN 93 003 359 279 (In Liquidation) [2019] NSWSC 427

The challenged terms ([31(b)] and [31(c)]) are terms of the Lumley First Policy, provided that the claim does not arise from or in connection with facts or circumstances that IUS knew or ought reasonably to have known prior to the Insurance Period might or could give rise to a claim; further, for [31(c)], provided there was in place a relevant contract of insurance from 23 March 2008 until notification to IUS in the week following 29 July 2008. The plaintiffs' notification did not amount to a 'Claim' within the meaning of the Lumley Second Policy. If the Proposal page was omitted, rectification would be appropriate, but it is unnecessary on the facts.

Parties
First Plaintiff: Julian Bechini; Second Plaintiff: Michelle Bechini; First Defendant: IUS Pty Limited (ABN 93 003 359 279) (In Liquidation); Second Defendant: WFI Insurance Limited (formerly known as Lumley General Insurance Limited) (ACN 000 036 279); Third Defendant: M&R Insurance Brokers Pty Limited (ACN 005 433 287)
Jurisdiction
Australia
Judgment Date
16 April 2019
Procedural Posture
Insurance/negligence/rectification / Separate Determination of Questions Before Substantive Trial
Outcome
Answers to separate determination questions; costs reserved
Legal Topics
Construction of Insurance Contract, Professional Indemnity Insurance, Rectification, Incorporation of Proposal Form, Notification of Claim, Common Intention in Contract Formation
Insurance Law Contract Law Equity Construction of Insurance Contract Professional Indemnity Insurance Rectification Incorporation of Proposal Form Notification of Claim +1 more

Case Brief

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Parties

Julian Bechini

First Plaintiff

Michelle Bechini

Second Plaintiff

IUS Pty Limited (ABN 93 003 359 279) (In Liquidation)

First Defendant

WFI Insurance Limited (formerly known as Lumley General Insurance Limited) (ACN 000 036 279)

Second Defendant

M&R Insurance Brokers Pty Limited (ACN 005 433 287)

Third Defendant

Procedural Posture

Insurance/negligence/rectification / Separate Determination of Questions Before Substantive Trial

Legal Issues

  1. 1 Whether the disputed terms form part of the Lumley First Policy
  2. 2 Whether the matters pleaded amount to a 'Claim'
  3. 3 Whether the contract should be rectified by the inclusion of omitted page

Ratio Decidendi

The challenged terms ([31(b)] and [31(c)]) are terms of the Lumley First Policy, provided that the claim does not arise from or in connection with facts or circumstances that IUS knew or ought reasonably to have known prior to the Insurance Period might or could give rise to a claim; further, for [31(c)], provided there was in place a relevant contract of insurance from 23 March 2008 until notification to IUS in the week following 29 July 2008. The plaintiffs' notification did not amount to a 'Claim' within the meaning of the Lumley Second Policy. If the Proposal page was omitted, rectification would be appropriate, but it is unnecessary on the facts.

Court Disposition

Answers to separate determination questions; costs reserved

Orders

  • First Question: Yes, provided that the claim does not arise from or in connection with facts or circumstances that IUS knew or ought reasonably to have known prior to the Insurance Period might or could give rise to a claim;
  • Second Question: Yes, again provided that the claim does not arise from or in connection with facts or circumstances that IUS knew or ought reasonably to have known prior to the Insurance Period might or could give rise to a claim and further provided that there was in place a relevant contract of insurance from 23...