Ashmere Cove Pty Ltd v Beekink [2009] FCA 564

Ashmere Cove Pty Ltd v Beekink [2009] FCA 564

Section 995(2) of the Corporations Law is 'similar legislation' for the purpose of cl 1.2.3 of the insurance policy, bringing claims within that clause. However, the endorsement's exclusion of indemnity for any claim made against KMF or for indemnity under the policy 'directly or indirectly arising out of the non-repayment of any loan which was originated or managed' by KMF is clear and applies to the circumstances of this case. To do otherwise would require rewriting the parties' insurance contract, which is not the function of the court.

Parties
Applicant: Ashmere Cove Pty Ltd; Applicant: CG Super Pty Ltd; Applicant: Choral Pty Ltd; Applicant: Pullington Investments Pty Ltd; Applicant: Geraldine Gray; Applicant: Mantel Brewing Services; Applicant: Catherine Emma Husk; Applicant: Jennifer Anne Allen & Mikayla Kim Dunne; Applicant: Blyth Nominees Pty Ltd; Applicant: John Andrew Maslen & Joan Carmel Maslen; Applicant: Creaton Pty Ltd; Respondent: Peter Cornelius Beekink; Respondent: Hersh Solomon Matjeles; Respondent: Gregory Phillip Gaunt; Respondent: Giovanni Maurizio Carello (Liquidator of Knightsbridge Managed Funds Limited (in liquidation)); Respondent: Knightsbridge Managed Funds Limited (in liquidation); Respondent: Suncorp Metway Insurance Limited; Respondent: Employers Reinsurance Corporation; Cross Respondent: Latrobe Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
02 June 2009
Procedural Posture
Preliminary Issue Decision / Interlocutory
Outcome
Proceedings against sixth and seventh respondents dismissed; applicants to pay sixth and seventh respondents' costs.
Legal Topics
Construction of Insurance Policy, Interpretation of Exclusion Clauses, Misleading and Deceptive Conduct, Managed Investment Schemes
Insurance Law Corporations Law Civil Procedure Construction of Insurance Policy Interpretation of Exclusion Clauses Misleading and Deceptive Conduct Managed Investment Schemes

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Parties

Ashmere Cove Pty Ltd

Applicant

CG Super Pty Ltd

Applicant

Choral Pty Ltd

Applicant

Pullington Investments Pty Ltd

Applicant

Geraldine Gray

Applicant

Mantel Brewing Services

Applicant

Catherine Emma Husk

Applicant

Jennifer Anne Allen & Mikayla Kim Dunne

Applicant

Blyth Nominees Pty Ltd

Applicant

John Andrew Maslen & Joan Carmel Maslen

Applicant

Creaton Pty Ltd

Applicant

Peter Cornelius Beekink

Respondent

Hersh Solomon Matjeles

Respondent

Gregory Phillip Gaunt

Respondent

Giovanni Maurizio Carello (Liquidator of Knightsbridge Managed Funds Limited (in liquidation))

Respondent

Knightsbridge Managed Funds Limited (in liquidation)

Respondent

Suncorp Metway Insurance Limited

Respondent

Employers Reinsurance Corporation

Respondent

Latrobe Holdings Pty Ltd

Cross Respondent

Procedural Posture

Preliminary Issue Decision / Interlocutory

Legal Issues

  1. 1 Whether s 995(2) Corporations Law is 'similar legislation' within the meaning of the insurance policy
  2. 2 Whether endorsement excluding indemnity for claims 'directly or indirectly arising out of the non-repayment of any loan which was originated or managed' by the insured excludes cover for the applicants' claims

Ratio Decidendi

Section 995(2) of the Corporations Law is 'similar legislation' for the purpose of cl 1.2.3 of the insurance policy, bringing claims within that clause. However, the endorsement's exclusion of indemnity for any claim made against KMF or for indemnity under the policy 'directly or indirectly arising out of the non-repayment of any loan which was originated or managed' by KMF is clear and applies to the circumstances of this case. To do otherwise would require rewriting the parties' insurance contract, which is not the function of the court.

Court Disposition

Proceedings against sixth and seventh respondents dismissed; applicants to pay sixth and seventh respondents' costs.

Orders

  • Answer to Question 1: Yes (claims under s 995(2) Corporations Law fall within clause 1.2.3 of the Policy)
  • Answer to Question 2: Yes (endorsement excludes indemnity otherwise available to KMF)