HDI-Global SE v Zurich Australian Insurance Limited [2020] NSWSC 1384

HDI-Global SE v Zurich Australian Insurance Limited [2020] NSWSC 1384

Exceptional circumstances justified ordering Zurich to give discovery of the excess policy because its terms were central to the issues, Zurich's response referred to it extensively, and the policy terms were peculiarly within Zurich's knowledge; Zurich's solicitor's evidence that the policy could not be located did not alter the need for verified discovery or appropriate evidence from Zurich if proper searches failed. The other categories were not necessary: the plaintiff was not a party to Zurich's policy and would not have standing to seek rectification, and documents evidencing Zurich's later payment of legal costs were unlikely to illuminate surrounding circumstances existing when...

Jurisdiction
Australia
Judgment Date
09 October 2020
Procedural Posture
Civil Procedure Discovery Motion in Equity Commercial List Proceedings Concerning Liability Insurance / Notice of Motion Filed on 28 August 2020 for Discovery in Advance of Evidence, Determined on the Papers
Outcome
The plaintiff's motion was allowed in part: discovery of the Zurich excess policy was ordered, but discovery of the underwriting file and legal costs payment documents was refused; costs of the motion were ordered to be costs in the cause.
Legal Topics
['discovery' 'disclosure in the Equity Division' 'exceptional Circumstances' 'liability Insurance' 'defence Costs' 'contribution' 'recoupment']
['civil Procedure' 'insurance'] ['discovery' 'disclosure in the Equity Division' 'exceptional Circumstances' 'liability Insurance' 'defence Costs' 'contribution' 'recoupment']

Case Brief

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Procedural Posture

Civil Procedure Discovery Motion in Equity Commercial List Proceedings Concerning Liability Insurance / Notice of Motion Filed on 28 August 2020 for Discovery in Advance of Evidence, Determined on the Papers

Legal Issues

  1. 1 ['Whether exceptional circumstances under Practice Note SC Eq 11 justified disclosure before the parties served their evidence.' 'Whether the first defendant should give discovery of the Umbrella Liability Policy issued to Origin Energy Limited and/or Origin Energy LPG Limited.' 'Whether the first defendant should give discovery of its underwriting file for Origin Energy and subsidiaries in respect of Umbrella Liability Policies issued for 2001 to 2005.' 'Whether the first defendant should give discovery of documents evidencing payment of legal costs relating to the defence of Supreme Court Proceedings No: SC 2005/270917.']

Ratio Decidendi

Exceptional circumstances justified ordering Zurich to give discovery of the excess policy because its terms were central to the issues, Zurich's response referred to it extensively, and the policy terms were peculiarly within Zurich's knowledge; Zurich's solicitor's evidence that the policy could not be located did not alter the need for verified discovery or appropriate evidence from Zurich if proper searches failed. The other categories were not necessary: the plaintiff was not a party to Zurich's policy and would not have standing to seek rectification, and documents evidencing Zurich's later payment of legal costs were unlikely to illuminate surrounding circumstances existing when...

Court Disposition

The plaintiff's motion was allowed in part: discovery of the Zurich excess policy was ordered, but discovery of the underwriting file and legal costs payment documents was refused; costs of the motion were ordered to be costs in the cause.

Orders

  • ["Order that within 21 days of today's date, the first defendant give verified discovery to the plaintiff of the Umbrella Liability Policy issued by it to Origin Energy Limited (and/or Origin Energy LPG Limited) in respect of liabilities ranging between $20,000,000 and $130,000,000 (as to 70%) for the period 30 June...