Malamit Pty Ltd v WFI Insurance Ltd & Ors [2016] NSWSC 1306

Malamit Pty Ltd v WFI Insurance Ltd & Ors [2016] NSWSC 1306

The insurance policy does not respond to the insured's claim because Treetops Pty Ltd, as a subsidiary of the insured, is excluded from the definition of third party for the policy's purposes, and clause 7.15 expressly excludes cover for claims brought by a subsidiary irrespective of the capacity in which the claim is brought. Accordingly, indemnity was properly refused.

Parties
Plaintiff: Malamit Pty Limited; First Defendant: WFI Insurance Limited trading as Lumley General; Second Defendant: Arthur J Gallagher (Aus) Pty Ltd; Third Defendant: Martin Andrews
Jurisdiction
Australia
Judgment Date
16 September 2016
Procedural Posture
Civil / Principal Judgment on Question of Indemnity Under Insurance Policy; Determination on Declaration Sought Regarding Insurer's Liability
Outcome
Proceedings dismissed; insurer entitled to refuse indemnity.
Legal Topics
Policy Interpretation, Exclusion Clauses, Meaning of 'third Party' in Insurance, Unit Trusts and Present Entitlement
Contract Law Insurance Law Trusts Policy Interpretation Exclusion Clauses Meaning of 'third Party' in Insurance Unit Trusts and Present Entitlement

Case Brief

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Parties

Malamit Pty Limited

Plaintiff

WFI Insurance Limited trading as Lumley General

First Defendant

Arthur J Gallagher (Aus) Pty Ltd

Second Defendant

Martin Andrews

Third Defendant

Procedural Posture

Civil / Principal Judgment on Question of Indemnity Under Insurance Policy; Determination on Declaration Sought Regarding Insurer's Liability

Legal Issues

  1. 1 Whether the insured is entitled to indemnity under the policy in respect of the claim brought by Treetops Pty Ltd as trustee of Lismore Business Park Unit Trust; specifically, whether the claim falls within any exclusion in the insurance policy, including exclusions for claims by, on behalf of, or for the benefit of an insured, subsidiary, or family member

Ratio Decidendi

The insurance policy does not respond to the insured's claim because Treetops Pty Ltd, as a subsidiary of the insured, is excluded from the definition of third party for the policy's purposes, and clause 7.15 expressly excludes cover for claims brought by a subsidiary irrespective of the capacity in which the claim is brought. Accordingly, indemnity was properly refused.

Court Disposition

Proceedings dismissed; insurer entitled to refuse indemnity.

Orders

  • Proceedings dismissed; insurer not required to indemnify insured.