Weir Services Australia Pty Ltd v AXA Corporate Solutions Assurance [2018] NSWCA 100

Weir Services Australia Pty Ltd v AXA Corporate Solutions Assurance [2018] NSWCA 100

The court held that the cap and collar agreement did not render Weir legally liable to pay compensation within the meaning of the policy, as the sum was not in settlement of a third-party claim for property damage but dependent on the outcome of arbitration, in which no liability was found. The failure of the weld was not a distinct 'occurrence' separate from the property damage; and in any event, Weir's claim was excluded by the professional services exclusion. The product defect exclusion would have defeated claims for damage to the welded component and mill attributable to the defective welding.

Jurisdiction
Australia
Judgment Date
16 May 2018
Procedural Posture
Appeal / Court of Appeal, Post Judgment
Outcome
Appeal dismissed; Cross-appeal dismissed; Judgment below affirmed; Costs ordered against Appellant.
Legal Topics
['legal Liability Insurance' 'scope of Cover' 'scope of Exclusions' 'professional Services Exclusion' 'product Defect Exclusion' 'meaning of Occurrence' 'refurbishment Contracts' 'liability for Costs Under Insurance Policies']
['insurance Law'] ['legal Liability Insurance' 'scope of Cover' 'scope of Exclusions' 'professional Services Exclusion' 'product Defect Exclusion' 'meaning of Occurrence' 'refurbishment Contracts' 'liability for Costs Under Insurance Policies']

Case Brief

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Procedural Posture

Appeal / Court of Appeal, Post Judgment

Legal Issues

  1. 1 ["Whether the 'cap and collar' agreement rendered Weir legally liable to pay compensation for property damage covered by the insurance policy" "Whether the failure of the circumferential weld constituted an 'occurrence' under the policy" 'Whether legal expenses in arbitration were covered under cl 2.2 of the policy' "Whether the 'professional services' exclusion (cl 3.4) defeated any entitlement to indemnity or costs" "Whether the 'product defect' exclusion (cl 3.7) excluded cover for the damage claimed"]

Ratio Decidendi

The court held that the cap and collar agreement did not render Weir legally liable to pay compensation within the meaning of the policy, as the sum was not in settlement of a third-party claim for property damage but dependent on the outcome of arbitration, in which no liability was found. The failure of the weld was not a distinct 'occurrence' separate from the property damage; and in any event, Weir's claim was excluded by the professional services exclusion. The product defect exclusion would have defeated claims for damage to the welded component and mill attributable to the defective welding.

Court Disposition

Appeal dismissed; Cross-appeal dismissed; Judgment below affirmed; Costs ordered against Appellant.

Orders

  • ['Appeal dismissed.' 'Cross-appeal dismissed.' 'Judgment of the court below affirmed.' 'That Weir Services Australia Pty Ltd pay the costs of AXA Corporate Solutions Assurance.']