MARCHAND, MARCHAND AND COSTELLOE v JACKSON & ANOR HC CHCH CIV 2011-409-810

MARCHAND, MARCHAND AND COSTELLOE v JACKSON & ANOR HC CHCH CIV 2011-409-810

The broker breached his contractual duties by failing to procure the house and contents insurance, by assuring the plaintiffs that cover was in place and by not informing or properly advising them after becoming aware of the MAS cancellation and Dr Marchand's convictions; on the balance of probabilities the plaintiffs would have disclosed the convictions and obtained the insurance sought (or equivalent) if the broker had performed his duties, so the defendant is liable to compensate the plaintiffs to put them in the same position as if cover had been obtained; contributory negligence was not established and damages are not to be rebated.

Citation
openlaw-6dbf7598_dcde_4a03_a229_392b16c6b1b9.pdf
Parties
First Plaintiff / Trustee: Nicola Jayne Marchand; First Plaintiff / Trustee: Jacques Renard Marchand; First Plaintiff / Trustee: Patrick Gregory Costelloe; Second Plaintiff: Nicola Jayne Marchand; Second Plaintiff: Jacques Renard Marchand; Defendant (insurance Broker): John F Jackson; Third Party: IAG New Zealand Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
2 November 2012
Procedural Posture
Civil (insurance/contract Dispute) / Judgment on Liability (quantum Reserved)
Outcome
Judgment for the first plaintiffs on liability against the defendant; quantum to be determined at further hearing
Legal Topics
Broker Duties, Non Disclosure, Insurability, Loss of Chance, Remedies for Failed Insurance Placement, Quantum to Be Determined
Insurance Law Contract Law Negligence / Tort Agency Law Contributory Negligence Broker Duties Non Disclosure Insurability +3 more

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Parties

Nicola Jayne Marchand

First Plaintiff / Trustee

Jacques Renard Marchand

First Plaintiff / Trustee

Patrick Gregory Costelloe

First Plaintiff / Trustee

Nicola Jayne Marchand

Second Plaintiff

Jacques Renard Marchand

Second Plaintiff

John F Jackson

Defendant (insurance Broker)

IAG New Zealand Limited

Third Party

Procedural Posture

Civil (insurance/contract Dispute) / Judgment on Liability (quantum Reserved)

Legal Issues

  1. 1 What were the broker's contractual duties?
  2. 2 Did the broker breach those duties by failing to procure insurance and by misrepresenting cover?
  3. 3 If breach occurred, what loss is the broker liable for (in principle)?

Ratio Decidendi

The broker breached his contractual duties by failing to procure the house and contents insurance, by assuring the plaintiffs that cover was in place and by not informing or properly advising them after becoming aware of the MAS cancellation and Dr Marchand's convictions; on the balance of probabilities the plaintiffs would have disclosed the convictions and obtained the insurance sought (or equivalent) if the broker had performed his duties, so the defendant is liable to compensate the plaintiffs to put them in the same position as if cover had been obtained; contributory negligence was not established and damages are not to be rebated.

Court Disposition

Judgment for the first plaintiffs on liability against the defendant; quantum to be determined at further hearing

Orders

  • Defendant liable to the first plaintiffs for losses on the basis that insurance would have been obtained; quantum to be assessed at a further hearing
  • Counsel to confer and file a joint memorandum proposing steps and timetable for quantum hearing