Macquarie Underwriting Pty Ltd v Permanent Custodians Limited [2007] FCAFC 60

Macquarie Underwriting Pty Ltd v Permanent Custodians Limited [2007] FCAFC 60

The appeal was allowed in part because PCL had an arguable basis to enforce a statutory charge over insurance moneys under the second policy: the effect of cl 4.1 and s 33 of the Insurance Contracts Act 1984 (Cth) was arguable, Neil Teves was named for the second policy, and Macquarie was arguably an insurer in its own right. However, PCL had no arguable entitlement under the first policy because cl 1.8 of the Valuers – Australia endorsement separately excluded valuations undertaken or signed by a person not named in the special conditions, Neil Teves was not named, and there was no evidentiary foundation for rectification or utmost good faith arguments.

Jurisdiction
Australia
Judgment Date
03 May 2007
Procedural Posture
Appeal From an Interlocutory Judgment Granting Leave to Join Insurers Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw) / Full Court Appeal
Outcome
Appeal allowed in part.
Legal Topics
['joinder of Insurer' 'statutory Charge on Insurance Moneys' 'professional Indemnity Insurance' 'claims Made Policies' 'policy Construction' 'duty of Utmost Good Faith' 'insurer Acting as Agent']
['insurance' 'civil Procedure' 'agency'] ['joinder of Insurer' 'statutory Charge on Insurance Moneys' 'professional Indemnity Insurance' 'claims Made Policies' 'policy Construction' 'duty of Utmost Good Faith' 'insurer Acting as Agent']

Case Brief

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Procedural Posture

Appeal From an Interlocutory Judgment Granting Leave to Join Insurers Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw) / Full Court Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in granting leave to join Macquarie Underwriting Pty Ltd and SVB Syndicates Limited as additional respondents under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).' 'Whether PCL had shown an arguable case of liability against ARMA Pty Limited and Neil Teves and an arguable case of indemnity under the professional indemnity policies.' 'Whether the first policy responded where the valuation was undertaken or signed by Neil Teves, who was not named in the special conditions of that policy.' 'Whether exclusion cl 4.1 of the second policy defeated cover or whether PCL had an arguable answer based on s 33 of the Insurance Contracts Act 1984 (Cth).' 'Whether Macquarie Underwriting Pty Ltd was arguably an insurer in its own right or only an agent for the Security.']

Ratio Decidendi

The appeal was allowed in part because PCL had an arguable basis to enforce a statutory charge over insurance moneys under the second policy: the effect of cl 4.1 and s 33 of the Insurance Contracts Act 1984 (Cth) was arguable, Neil Teves was named for the second policy, and Macquarie was arguably an insurer in its own right. However, PCL had no arguable entitlement under the first policy because cl 1.8 of the Valuers – Australia endorsement separately excluded valuations undertaken or signed by a person not named in the special conditions, Neil Teves was not named, and there was no evidentiary foundation for rectification or utmost good faith arguments.

Court Disposition

Appeal allowed in part.

Orders

  • ['The appeal be allowed in part.' 'Order 1 made on 4 July 2006 granting leave to Permanent Custodians Limited to join Macquarie Underwriting Pty Limited and SVB Syndicates Ltd as additional respondents to proceeding NSD 1758/2004 be varied by limiting that leave to an action seeking to enforce a charge on insurance...