Permanent Custodians Limited v ARMA Pty Limited [2006] FCA 640

Permanent Custodians Limited v ARMA Pty Limited [2006] FCA 640

PCL established a reasonably arguable case that the professional indemnity policies could respond to its claim and that the insurers were not shown at the interlocutory stage to be entitled to disclaim liability. The second policy was arguably engaged because a claim was made and notified during that policy period and the pre-period letters did not conclusively trigger exclusion clause 4.1 before loss crystallised. It was also reasonably arguable that the first policy might respond despite the absence of Neil Teves as a named valuer, given the construction and good faith arguments. Because the identity and capacity of the insurer or underwriters remained uncertain but Macquarie issued the...

Jurisdiction
Australia
Judgment Date
29 May 2006
Procedural Posture
Interlocutory Application for Leave to Join Professional Indemnity Insurers Under S 6 of the Law Reform (miscellaneous Provisions) Act 1946 (nsw) / Reasons for Judgment and Orders Standing Over Final Orders on Joinder
Outcome
Leave to join Macquarie Underwriting Pty Limited and SVB Syndicates Ltd was granted in principle, subject to the evidentiary matter identified in the reasons, and the making of final orders was stood over for 21 days.
Legal Topics
['professional Indemnity Insurance' 'statutory Charge Over Insurance Moneys' 'joinder of Insurers' 'claims Made Policies' 'leave Under S 6 of the Law Reform (miscellaneous Provisions) Act 1946 (nsw)' 'misleading or Deceptive Conduct by Valuer' 'construction of Exclusion Clauses' 'utmost Good Faith' 'non Disclosure']
['insurance' 'civil Procedure' 'trade Practices' 'professional Liability'] ['professional Indemnity Insurance' 'statutory Charge Over Insurance Moneys' 'joinder of Insurers' 'claims Made Policies' 'leave Under S 6 of the Law Reform (miscellaneous Provisions) Act 1946 (nsw)' 'misleading or Deceptive Conduct by Valuer' 'construction of Exclusion Clauses' 'utmost Good Faith' 'non Disclosure']

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Procedural Posture

Interlocutory Application for Leave to Join Professional Indemnity Insurers Under S 6 of the Law Reform (miscellaneous Provisions) Act 1946 (nsw) / Reasons for Judgment and Orders Standing Over Final Orders on Joinder

Legal Issues

  1. 1 ['Whether PCL should have leave to join Macquarie Underwriting Pty Limited and/or SVB Syndicates Ltd as respondents under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).' "Whether PCL's proposed claim against the insurers was reasonably arguable." 'Whether the second policy responded to the claim or was defeated by exclusion clause 4.1 because ARMA or Mr Teves had received letters before the second insurance period.' 'Whether the first policy could respond despite Neil Teves not being named as a valuer in its Special Conditions.' "Whether ss 14, 33 and 37 of the Insurance Contracts Act 1984 (Cth) affected the insurers' reliance on policy provisions or exclusions." 'Whether Macquarie, SVB, or both could properly be joined despite uncertainty about the identity of the underwriters.']

Ratio Decidendi

PCL established a reasonably arguable case that the professional indemnity policies could respond to its claim and that the insurers were not shown at the interlocutory stage to be entitled to disclaim liability. The second policy was arguably engaged because a claim was made and notified during that policy period and the pre-period letters did not conclusively trigger exclusion clause 4.1 before loss crystallised. It was also reasonably arguable that the first policy might respond despite the absence of Neil Teves as a named valuer, given the construction and good faith arguments. Because the identity and capacity of the insurer or underwriters remained uncertain but Macquarie issued the...

Court Disposition

Leave to join Macquarie Underwriting Pty Limited and SVB Syndicates Ltd was granted in principle, subject to the evidentiary matter identified in the reasons, and the making of final orders was stood over for 21 days.

Orders

  • ['The making of final orders in the subject interlocutory proceedings for joinder of Macquarie Underwriting Pty Limited and/or SVB Syndicates Ltd be stood over for 21 days with liberty to apply in the meantime on two days notice.' 'The applicant to provide to Macquarie Underwriting Pty Limited and SVB Syndicates Ltd...