Visy Packaging Pty Ltd v Siegwerk Australia Pty Ltd [2013] FCA 231

Visy Packaging Pty Ltd v Siegwerk Australia Pty Ltd [2013] FCA 231

Siegwerk did not establish on the balance of probabilities that the substitution of one epoxy resin for another was the cause of lacquer failure leading to can corrosion; Dr Scheirs’s theory remained only plausible, not probable, and competing or uninvestigated alternative causes remained possible. Accordingly, Siegwerk’s cross-claim against Nuplex failed. However, Nuplex’s insurance policy with QBE obliged QBE to defend claims of property damage within policy terms, and no exclusion applied to defeat that obligation, so QBE was ordered to pay Nuplex’s indemnity costs for such defence.

Jurisdiction
Australia
Judgment Date
19 March 2013
Procedural Posture
Civil / Trial Judgment
Outcome
Siegwerk's cross-claim against Nuplex dismissed; QBE held obliged to defend Nuplex and to pay Nuplex's indemnity costs of defending the proceeding, subject to deductible and recovery from Siegwerk.
Legal Topics
['causation in Contract' 'breach of Contract' 'liability Insurance' 'policy Exclusions' 'indemnity Obligations' 'property Damage']
['contract' 'insurance'] ['causation in Contract' 'breach of Contract' 'liability Insurance' 'policy Exclusions' 'indemnity Obligations' 'property Damage']

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Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 ['Whether the substitution of one epoxy resin for another caused corrosion of can ends leading to property damage' 'Whether any loss resulting from corrosion falls within the coverage of the liability insurance policy and/or is excluded']

Ratio Decidendi

Siegwerk did not establish on the balance of probabilities that the substitution of one epoxy resin for another was the cause of lacquer failure leading to can corrosion; Dr Scheirs’s theory remained only plausible, not probable, and competing or uninvestigated alternative causes remained possible. Accordingly, Siegwerk’s cross-claim against Nuplex failed. However, Nuplex’s insurance policy with QBE obliged QBE to defend claims of property damage within policy terms, and no exclusion applied to defeat that obligation, so QBE was ordered to pay Nuplex’s indemnity costs for such defence.

Court Disposition

Siegwerk's cross-claim against Nuplex dismissed; QBE held obliged to defend Nuplex and to pay Nuplex's indemnity costs of defending the proceeding, subject to deductible and recovery from Siegwerk.

Orders

  • ['The cross-claim of Siegwerk against Nuplex be dismissed.' "Siegwerk pay Nuplex's costs of that cross-claim." 'Zurich (by undertaking) pay agreed or assessed costs to Nuplex up to $750,000 limit.' "QBE to pay, subject to deduction of $500,000 and sums recovered from Siegwerk, the balance of Nuplex's costs of the...