Macquarie Underwriting Pty Ltd v Permanent Custodians Limited [2006] FCA 1291

Procedural Posture

Application for Leave to Appeal / Leave to Appeal From an Order Joining Insurers to Proceedings Pursuant to S 6 of the Law Reform (miscellaneous Provisions) Act 1946 (nsw)

Legal Issues

1. 1 ["Whether the insurers should be granted leave to appeal the primary judge's decision granting leave to join them to the proceedings under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)." 'Whether it was reasonably arguable that the exclusions in the first professional indemnity policy operated conjunctively rather than disjunctively.' 'Whether Exclusion 4.1 of the second professional indemnity policy provided the insurers with a complete defence because a claim or circumstances that might result in a claim existed before the insurance period.' 'Whether Exclusion 4.1 was a non-disclosure clause or otherwise affected by s 33 of the Insurance Contracts Act 1984 (Cth).' 'Whether Macquarie Underwriting Pty Ltd, as agent rather than underwriter, should have been joined as an insurer.']

Ratio Decidendi

Leave to appeal was granted because there was sufficient doubt as to whether the conjunctive construction of the first policy exclusions was reasonably arguable, and because central arguments concerning Exclusion 4.1 of the second policy and the possible application or non-application of s 33 of the Insurance Contracts Act 1984 (Cth) were not fully considered by the primary judge. If the insurers were entitled to disclaim liability, their joinder would cause substantial injustice not fully cured by costs, so the matter warranted reconsideration on appeal.

Court Disposition

Application for leave to appeal granted.

Orders

• ['The application for leave to appeal is granted.' "The first respondent pay the applicants' costs of the application."]