In the matter of HIH Casualty & General Insurance Limited (in liquidation and subject to schemes of arrangement) [2015] NSWSC 924

In the matter of HIH Casualty & General Insurance Limited (in liquidation and subject to schemes of arrangement) [2015] NSWSC 924

The Municipal receipt and the Pohjola receipt were materially identical to recoveries addressed in the earlier judgment and were received in respect of HIHC&G's actual or contingent liability to the Plaintiffs under contracts of reinsurance. It was just and equitable under s 562A(4) to disapply ss 562A(2) and 562A(3) because HIHC&G entered into the reinsurance contracts to provide cover for the Plaintiffs, could not have provided that cover without the reinsurance, the reinsurers could not insure the Plaintiffs directly, the premiums paid by the Plaintiffs to HIHC&G were identical apart from an immaterial difference to the premiums paid by HIHC&G to the reinsurers, and the James Hardie...

Jurisdiction
Australia
Judgment Date
14 July 2015
Procedural Posture
Corporations – Winding Up – Insolvency – Application for Orders Under Corporations Act 2001 (cth) S 562 A(4) / Interlocutory Process Filed on 17 June 2015; Heard on the Papers
Outcome
Held that it is just and equitable to make the orders sought. Orders in accordance with the Short Minutes of Order submitted by the Plaintiffs.
Legal Topics
['winding Up' 'proceeds of Contract of Reinsurance' 'application of Corporations Act 2001 (cth) S 562 A(4)' 'just and Equitable Allocation of Reinsurance Proceeds']
['corporations Law' 'insolvency' 'insurance and Reinsurance'] ['winding Up' 'proceeds of Contract of Reinsurance' 'application of Corporations Act 2001 (cth) S 562 A(4)' 'just and Equitable Allocation of Reinsurance Proceeds']

Case Brief

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Procedural Posture

Corporations – Winding Up – Insolvency – Application for Orders Under Corporations Act 2001 (cth) S 562 A(4) / Interlocutory Process Filed on 17 June 2015; Heard on the Papers

Legal Issues

  1. 1 ['Whether ss 562A(2)–(3) of the Corporations Act 2001 (Cth) should not apply to the Municipal receipt and the Pohjola receipt.' 'Whether it was just and equitable under s 562A(4) of the Corporations Act 2001 (Cth) to order that the receipts be applied by deducting expenses and any dividends or distributions already paid and paying the balance to Amaca Pty Ltd.']

Ratio Decidendi

The Municipal receipt and the Pohjola receipt were materially identical to recoveries addressed in the earlier judgment and were received in respect of HIHC&G's actual or contingent liability to the Plaintiffs under contracts of reinsurance. It was just and equitable under s 562A(4) to disapply ss 562A(2) and 562A(3) because HIHC&G entered into the reinsurance contracts to provide cover for the Plaintiffs, could not have provided that cover without the reinsurance, the reinsurers could not insure the Plaintiffs directly, the premiums paid by the Plaintiffs to HIHC&G were identical apart from an immaterial difference to the premiums paid by HIHC&G to the reinsurers, and the James Hardie...

Court Disposition

Held that it is just and equitable to make the orders sought. Orders in accordance with the Short Minutes of Order submitted by the Plaintiffs.

Orders

  • ['For policy years commencing 31 March 1989, 31 March 1990, 31 March 1991 and 31 March 1992, pursuant to section 562A(4) of the Corporations Act 2001 (Cth), subsections 562A(2) and 562A(3) do not apply to $262,667 received from Municipal General Insurance, and the Municipal receipt must instead be applied by the...