Austcorp Project No 20 Pty Ltd v LM Investment Management Ltd, in the matter of Bellpac Pty Ltd (receivers and managers appointed) (in liq) (No 2) [2014] FCA 44

Austcorp Project No 20 Pty Ltd v LM Investment Management Ltd, in the matter of Bellpac Pty Ltd (receivers and managers appointed) (in liq) (No 2) [2014] FCA 44

The Commercial List Response was not a Claim within the policies because it did not claim damages or compensation for which LM would have been legally liable, it was not a counter-claim brought against LM in the relevant sense, and it did not involve a Claim for Loss under the insuring clause. In any event, the claim in this proceeding was not first made in the Commercial List Response because the loss and relief asserted by Mr Wong were different from the equitable compensation now claimed by the Plaintiffs, and the claims were made by different parties.

Jurisdiction
Australia
Judgment Date
10 February 2014
Procedural Posture
Insurance Proceeding Concerning Professional Indemnity Insurance / Determination of Separate Question on Construction After Joinder of Insurers
Outcome
Preliminary question answered in favour of the Plaintiffs, subject to determination of material non-disclosure and any other insurance issues properly raised by the Insurers.
Legal Topics
['professional Indemnity Insurance' 'claims Made Policy' 'construction of Insurance Policy' 'definition of Claim and Counter Claim' 'separate Question' 'joinder of Insurers']
['insurance Law' 'civil Procedure'] ['professional Indemnity Insurance' 'claims Made Policy' 'construction of Insurance Policy' 'definition of Claim and Counter Claim' 'separate Question' 'joinder of Insurers']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Insurance Proceeding Concerning Professional Indemnity Insurance / Determination of Separate Question on Construction After Joinder of Insurers

Legal Issues

  1. 1 ['Whether the Commercial List Response in matter 299479 of 2010 in the Commercial List of the Supreme Court of New South Wales constituted a Claim, specifically a counter-claim, within the policies.' 'Whether the claim made in the present proceeding was first made in the Commercial List Response before the Period of Insurance.' "Whether the filing of the Commercial List Response meant that the Fifth to Seventh Defendants were not obliged to indemnify LM in relation to any claim for indemnity arising from the Plaintiffs' allegations."]

Ratio Decidendi

The Commercial List Response was not a Claim within the policies because it did not claim damages or compensation for which LM would have been legally liable, it was not a counter-claim brought against LM in the relevant sense, and it did not involve a Claim for Loss under the insuring clause. In any event, the claim in this proceeding was not first made in the Commercial List Response because the loss and relief asserted by Mr Wong were different from the equitable compensation now claimed by the Plaintiffs, and the claims were made by different parties.

Court Disposition

Preliminary question answered in favour of the Plaintiffs, subject to determination of material non-disclosure and any other insurance issues properly raised by the Insurers.

Orders

  • ['Declares that subject to the determination of the issue of material non-disclosure (and any other insurance issues properly raised by the Fifth, Sixth and Seventh Defendants), the filing of the Commercial List Response in matter 299479 of 2010 in the Commercial List of the Supreme Court of New South Wales, does...