Austcorp Project No 20 Pty Ltd v LM Investment Management Ltd, in the matter of Bellpac Pty Ltd (receivers and managers appointed) (in liq) [2013] FCA 883

Austcorp Project No 20 Pty Ltd v LM Investment Management Ltd, in the matter of Bellpac Pty Ltd (receivers and managers appointed) (in liq) [2013] FCA 883

The plaintiffs had an arguable case that the Commercial List Response was not a 'counter-claim' within the meaning of the claims made policies because it was defensive in nature, and it was not appropriate to finally resolve that construction issue or the possible underwriting defences on the interlocutory joinder application. Leave to join the insurers was therefore granted, subject to the parties formulating a separate question to determine the insurance issues on a final basis.

Jurisdiction
Australia
Judgment Date
08 November 2013
Procedural Posture
Practice and Procedure; Insurance; Application for Joinder of Insurers and Amendment of Pleadings / Further Amended Interlocutory Application
Outcome
Leave granted to amend the Originating Process and Statement of Claim; leave granted to join LM's professional indemnity insurers as defendants; parties directed to formulate a separate question for the insurance issues.
Legal Topics
['joinder of Parties' 'amendment of Pleadings' 'professional Indemnity Insurance' 'claims Made Policy' 'mortgagee Power of Sale' 'receivers and Managers' 'unconscionable Conduct']
['practice and Procedure' 'insurance' 'corporations'] ['joinder of Parties' 'amendment of Pleadings' 'professional Indemnity Insurance' 'claims Made Policy' 'mortgagee Power of Sale' 'receivers and Managers' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Practice and Procedure; Insurance; Application for Joinder of Insurers and Amendment of Pleadings / Further Amended Interlocutory Application

Legal Issues

  1. 1 ['Whether leave should be granted to amend the Originating Process and Statement of Claim.' "Whether the plaintiffs should be granted leave under r 9.02 or alternatively r 9.05 of the Federal Court Rules 2011 (Cth) to join LM's professional indemnity insurers as defendants." 'Whether the Commercial List Response was a claim or counter-claim first made against LM before the policy period under the claims made policies.' 'Whether possible underwriting and non-disclosure defences should preclude joinder at the interlocutory stage.']

Ratio Decidendi

The plaintiffs had an arguable case that the Commercial List Response was not a 'counter-claim' within the meaning of the claims made policies because it was defensive in nature, and it was not appropriate to finally resolve that construction issue or the possible underwriting defences on the interlocutory joinder application. Leave to join the insurers was therefore granted, subject to the parties formulating a separate question to determine the insurance issues on a final basis.

Court Disposition

Leave granted to amend the Originating Process and Statement of Claim; leave granted to join LM's professional indemnity insurers as defendants; parties directed to formulate a separate question for the insurance issues.

Orders

  • ['To the extent necessary, leave is granted to the plaintiffs to amend the Originating Process and Statement of Claim in accordance with the amended version of those documents provided in Court on 30 October 2013.' 'Leave is granted to the plaintiffs pursuant to Rule 9.02 or alternatively Rule 9.05 of the Federal...