Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited [2024] FCA 1193

Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited [2024] FCA 1193

Anti-anti-suit relief was granted in respect of Marsh Pty Ltd but not Marsh Limited. In respect of Marsh Limited, the Court declined to grant interim relief on the grounds that such an order would interfere with existing orders of the English Court and, applying comity, there were strong discretionary reasons against doing so, especially given the pending English hearing. As to Marsh Pty Ltd, since there was no competing English anti-suit injunction, such considerations did not arise, and on the material there was a serious question to be tried and the balance of convenience favoured interim restraint to preserve the position pending further hearing.

Parties
Applicant: Credit Suisse Virtuoso SICAV-SIF; First Respondent: Insurance Australia Limited; Second Respondent: Greensill Bank AG; Third Respondent: Michael Frege in his capacity as Insolvency Administrator for Greensill Bank AG; Fourth Respondent: BCC Trade Credit Pty Ltd; Fifth Respondent: Greg Brereton; Sixth Respondent: Tokio Marine Management (Australasia) Pty Ltd; Seventh Respondent: Tokio Marine & Nichido Fire Insurance Co Ltd; Eighth Respondent: Marsh Limited
Jurisdiction
Australia
Judgment Date
11 October 2024
Procedural Posture
Interlocutory Application / Ex Parte Hearing for Interim Anti Anti Suit Injunction
Outcome
Anti-anti-suit injunction granted against Marsh Pty Ltd (interim basis), refused as against Marsh Limited.
Legal Topics
Anti Suit Injunctions, Anti Anti Suit Injunctions, Implied Undertaking in Discovery, Comity, Misleading or Deceptive Conduct, Jurisdictional Disputes
Conflict of Laws Commercial Law Equity Anti Suit Injunctions Anti Anti Suit Injunctions Implied Undertaking in Discovery Comity Misleading or Deceptive Conduct +1 more

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Parties

Credit Suisse Virtuoso SICAV-SIF

Applicant

Insurance Australia Limited

First Respondent

Greensill Bank AG

Second Respondent

Michael Frege in his capacity as Insolvency Administrator for Greensill Bank AG

Third Respondent

BCC Trade Credit Pty Ltd

Fourth Respondent

Greg Brereton

Fifth Respondent

Tokio Marine Management (Australasia) Pty Ltd

Sixth Respondent

Tokio Marine & Nichido Fire Insurance Co Ltd

Seventh Respondent

Marsh Limited

Eighth Respondent

Procedural Posture

Interlocutory Application / Ex Parte Hearing for Interim Anti Anti Suit Injunction

Legal Issues

  1. 1 Whether an anti-anti-suit injunction should be granted against Marsh Limited and/or Marsh Pty Ltd.
  2. 2 Whether Marsh Limited and Marsh Pty Ltd used discovered documents in breach of the implied undertaking.
  3. 3 Whether the granting of anti-anti-suit relief would be contrary to principles of comity.

Ratio Decidendi

Anti-anti-suit relief was granted in respect of Marsh Pty Ltd but not Marsh Limited. In respect of Marsh Limited, the Court declined to grant interim relief on the grounds that such an order would interfere with existing orders of the English Court and, applying comity, there were strong discretionary reasons against doing so, especially given the pending English hearing. As to Marsh Pty Ltd, since there was no competing English anti-suit injunction, such considerations did not arise, and on the material there was a serious question to be tried and the balance of convenience favoured interim restraint to preserve the position pending further hearing.

Court Disposition

Anti-anti-suit injunction granted against Marsh Pty Ltd (interim basis), refused as against Marsh Limited.

Orders

  • Greensill Bank AG and Dr Frege have leave to file certain affidavits and interlocutory application.
  • Marsh Pty Ltd is joined for the interim relief component.