AMP Financial Planning Pty Ltd v CGU Insurance Limited [2008] FCAFC 74

AMP Financial Planning Pty Ltd v CGU Insurance Limited [2008] FCAFC 74

The cross appeal was dismissed because the primary judge was correct to construe the policies as indemnifying AMPFP for liability arising from acts or omissions of its authorised representatives, including liability under the Corporations Law; the investors' claims were within clause 3.2, arose in the course of the Insured Professional Business Practice, and were not excluded by clause 6.3(e). CGU's further complaint about the determination of construction issues did not justify setting aside the costs order, particularly because CGU had participated in the procedure by which those issues were isolated for decision.

Jurisdiction
Australia
Judgment Date
09 May 2008
Procedural Posture
Cross Appeal From a Costs Order in a Professional Indemnity Insurance Proceeding / Full Court of the Federal Court of Australia on Cross Appeal Remitted by the High Court
Outcome
Cross appeal dismissed with costs.
Legal Topics
['professional Indemnity Insurance' 'construction of Insurance Policies' 'licensed Securities Dealers' 'authorised Representatives' 'statutory Vicarious Liability' 'exclusion Clauses' 'calderbank Offers' 'indemnity Costs' 'party and Party Costs' 'issue Estoppel']
['insurance Law' 'corporations Law' 'civil Procedure' 'costs'] ['professional Indemnity Insurance' 'construction of Insurance Policies' 'licensed Securities Dealers' 'authorised Representatives' 'statutory Vicarious Liability' 'exclusion Clauses' 'calderbank Offers' 'indemnity Costs' 'party and Party Costs' 'issue Estoppel']

Case Brief

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Procedural Posture

Cross Appeal From a Costs Order in a Professional Indemnity Insurance Proceeding / Full Court of the Federal Court of Australia on Cross Appeal Remitted by the High Court

Legal Issues

  1. 1 ["Whether the investors' civil liability claims were within clause 3.2 of the professional indemnity policies." "Whether the claims arose in the course of AMPFP's Insured Professional Business Practice." "Whether clause 6.3(e) excluded the investors' claims from indemnity." "Whether the primary judge erred in reducing CGU's party and party costs by 10 per cent and refusing indemnity costs after a Calderbank offer." 'Whether the primary judge should have determined the construction questions when AMPFP had not established by admissible evidence that it was legally liable to the investors.']

Ratio Decidendi

The cross appeal was dismissed because the primary judge was correct to construe the policies as indemnifying AMPFP for liability arising from acts or omissions of its authorised representatives, including liability under the Corporations Law; the investors' claims were within clause 3.2, arose in the course of the Insured Professional Business Practice, and were not excluded by clause 6.3(e). CGU's further complaint about the determination of construction issues did not justify setting aside the costs order, particularly because CGU had participated in the procedure by which those issues were isolated for decision.

Court Disposition

Cross appeal dismissed with costs.

Orders

  • ['The cross appeal be dismissed.' "The cross appellant pay the cross respondent's costs of the cross appeal."]