Done v Financial Wisdom Limited [2008] FCA 1706

Done v Financial Wisdom Limited [2008] FCA 1706

Allianz was joined because the pleaded claims alleged unauthorised investment activity by Bentley Barton and Taylor, so the Investment Performance Exclusion, properly construed as applying to authorised investments, did not inevitably defeat the indemnity claim; joinder under O 6 r 2 would efficiently resolve the issues. Leave to proceed against Bentley Barton was justified by the complexity and seriousness of the claims and the existence of a potential insurance policy. Leave to proceed against Taylor was justified because his affairs were intertwined with those of other parties and a potential insurance policy was involved.

Jurisdiction
Australia
Judgment Date
14 November 2008
Procedural Posture
Proceeding Involving Interlocutory Notices of Motion for Leave to Proceed Against a Company in Liquidation and an Undischarged Bankrupt, Joinder of Insurer, and Amendment of Pleadings / Interlocutory Motions
Outcome
Motions granted; Allianz joined; leave granted to proceed against Bentley Barton Partners Pty Limited (in liq) and the estate of Gary Taylor; leave granted to file a further amended statement of claim; Allianz ordered to pay the applicants' costs of the joinder motion.
Legal Topics
['leave to Proceed Against Company in Liquidation' 'leave to Proceed Against Undischarged Bankrupt' 'joinder of Insurer' 'professional Indemnity Insurance' 'construction of Insurance Exclusion Clause' 'amendment of Pleadings']
['corporations Law' 'bankruptcy Law' 'civil Procedure' 'insurance Law'] ['leave to Proceed Against Company in Liquidation' 'leave to Proceed Against Undischarged Bankrupt' 'joinder of Insurer' 'professional Indemnity Insurance' 'construction of Insurance Exclusion Clause' 'amendment of Pleadings']

Case Brief

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Procedural Posture

Proceeding Involving Interlocutory Notices of Motion for Leave to Proceed Against a Company in Liquidation and an Undischarged Bankrupt, Joinder of Insurer, and Amendment of Pleadings / Interlocutory Motions

Legal Issues

  1. 1 ['Whether Allianz Australia Insurance Limited should be joined as a respondent pursuant to Order 6 rule 2 of the Federal Court Rules where a declaration was sought that it was obliged to indemnify Bentley Barton and Taylor under a professional indemnity policy.' 'Whether the Investment Performance Exclusion in the Allianz policy made the claim against Allianz inevitably fail.' 'Whether leave should be granted under s 471B of the Corporations Act 2001 (Cth) to proceed against Bentley Barton Partners Pty Limited (in liq).' 'Whether leave should be granted under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to proceed against the estate of Gary Taylor.' "Whether leave should be granted to file a further amended statement of claim reflecting Allianz's joinder."]

Ratio Decidendi

Allianz was joined because the pleaded claims alleged unauthorised investment activity by Bentley Barton and Taylor, so the Investment Performance Exclusion, properly construed as applying to authorised investments, did not inevitably defeat the indemnity claim; joinder under O 6 r 2 would efficiently resolve the issues. Leave to proceed against Bentley Barton was justified by the complexity and seriousness of the claims and the existence of a potential insurance policy. Leave to proceed against Taylor was justified because his affairs were intertwined with those of other parties and a potential insurance policy was involved.

Court Disposition

Motions granted; Allianz joined; leave granted to proceed against Bentley Barton Partners Pty Limited (in liq) and the estate of Gary Taylor; leave granted to file a further amended statement of claim; Allianz ordered to pay the applicants' costs of the joinder motion.

Orders

  • ['Allianz Australia Insurance Limited be joined as a respondent to the proceeding pursuant to Order 6 rule 2 of the Federal Court Rules.' 'Leave is granted to the applicants to proceed against Bentley Barton Partners Pty Limited (in liq).' 'Leave is granted to the applicants to proceed against the estate of Gary...