HIH CASUALTY & GENERAL INSURANCE v PADE & ANOR [2000] NSWCA 325

HIH CASUALTY & GENERAL INSURANCE v PADE & ANOR [2000] NSWCA 325

The letter of 24 November 1995 went beyond a reservation of rights and asserted a claim against the solicitors because, in context, it alleged their retainer, expressed concern about their inability to produce the security documents, sought an explanation about the mortgage variation, and threatened that the matter would be taken further if the documents and explanation were not provided. The later pleaded claim arose from the same essential matters. Because the claim was first made in 1995, before the 1998-2001 policy period, the insurer was not properly joined under s6 of the Law Reform (Miscellaneous Provisions) Act 1946.

Jurisdiction
Australia
Judgment Date
15 November 2000
Procedural Posture
Insurance Appeal Concerning Joinder of Insurer Under S6 of the Law Reform (miscellaneous Provisions) Act 1946 / Application for Leave to Appeal Heard With Full Argument as If on Appeal From District Court Orders Joining the Insurer
Outcome
Appeal allowed.
Legal Topics
['claims Made Professional Indemnity Policy' 'meaning of Claim' 'joinder of Insurer' "solicitors' Professional Indemnity Insurance"]
['insurance Law' 'civil Procedure' 'professional Negligence'] ['claims Made Professional Indemnity Policy' 'meaning of Claim' 'joinder of Insurer' "solicitors' Professional Indemnity Insurance"]

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Procedural Posture

Insurance Appeal Concerning Joinder of Insurer Under S6 of the Law Reform (miscellaneous Provisions) Act 1946 / Application for Leave to Appeal Heard With Full Argument as If on Appeal From District Court Orders Joining the Insurer

Legal Issues

  1. 1 ["Whether the letter dated 24 November 1995 from the opponents' solicitor to Poynten Dhaliwal constituted a claim first made against the solicitors for the purposes of the professional indemnity policy." "Whether the 1998-2001 professional indemnity policy responded to the opponents' claim against the solicitors." 'Whether the insurer should have been joined as a defendant under s6 of the Law Reform (Miscellaneous Provisions) Act 1946.']

Ratio Decidendi

The letter of 24 November 1995 went beyond a reservation of rights and asserted a claim against the solicitors because, in context, it alleged their retainer, expressed concern about their inability to produce the security documents, sought an explanation about the mortgage variation, and threatened that the matter would be taken further if the documents and explanation were not provided. The later pleaded claim arose from the same essential matters. Because the claim was first made in 1995, before the 1998-2001 policy period, the insurer was not properly joined under s6 of the Law Reform (Miscellaneous Provisions) Act 1946.

Court Disposition

Appeal allowed.

Orders

  • ['Grant leave to appeal.' "Note claimant's undertaking to the Court to file notice of appeal and pay the appropriate fee." 'Appeal upheld.' 'Set aside orders made by Sinclair ADCJ on 26 May 2000 and in lieu thereof order that the notice of motion be dismissed with costs.' "Respondents to pay appellant's costs of the...