The Owners – Strata Plan 89005 v Stromer (No 2) [2022] NSWSC 955

The Owners – Strata Plan 89005 v Stromer (No 2) [2022] NSWSC 955

There is no arguable case that the relevant insurance policy would respond to the claim as the claim was not made or notified to the insurer during the required policy period. The policy remains a 'claims made' policy despite the Australian Conditions Endorsement. Leave to proceed against the insurer is refused; leave to proceed against the certifier in liquidation is to be granted on the condition that any judgment is enforceable only as a proof of debt in the liquidation.

Jurisdiction
Australia
Judgment Date
15 July 2022
Procedural Posture
Civil / Interlocutory – Application for Leave to Proceed Against Insurer and Company in Liquidation
Outcome
Leave to proceed under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) refused; leave to proceed against company in liquidation to be granted
Legal Topics
['civil Procedure' 'leave to Proceed' 'liquidation' 'claims Against Insurers']
['insurance' 'corporations'] ['civil Procedure' 'leave to Proceed' 'liquidation' 'claims Against Insurers']

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Procedural Posture

Civil / Interlocutory – Application for Leave to Proceed Against Insurer and Company in Liquidation

Legal Issues

  1. 1 ['Whether leave should be granted to proceed against insurer under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)' 'Whether there is an arguable case that the relevant insurance policy would respond to the claim' 'Whether leave should be granted to proceed against certifier company in liquidation under s 471B of the Corporations Act 2001 (Cth)']

Ratio Decidendi

There is no arguable case that the relevant insurance policy would respond to the claim as the claim was not made or notified to the insurer during the required policy period. The policy remains a 'claims made' policy despite the Australian Conditions Endorsement. Leave to proceed against the insurer is refused; leave to proceed against the certifier in liquidation is to be granted on the condition that any judgment is enforceable only as a proof of debt in the liquidation.

Court Disposition

Leave to proceed under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) refused; leave to proceed against company in liquidation to be granted

Orders

  • ["Leave to proceed against Lloyd's of London Syndicates refused" 'Leave to proceed against Mondan Management Pty Ltd (in liquidation) granted, subject to enforcement only as proof of debt in winding up' 'Notice of Motion otherwise dismissed with costs']