LEONARDO V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2007-404-1352

LEONARDO V AUCKLAND CITY COUNCIL AND ORS HC AK CIV 2007-404-1352

The Building Defects Exclusion, read literally and in context, excludes indemnity for claims arising directly or indirectly from leaks/water penetration including negligent failure to detect such defects in a non-invasive survey; however, factual disputes exist as to whether the broker was authorised by QBE to represent that the exclusion did not apply to consultancy work. Those disputes are material and not appropriate for resolution on summary judgment or strike out, so the interlocutory applications must be dismissed.

Citation
openlaw-3b07a3a3_13f0_417a_a33d_3d7ece3b751c.pdf
Parties
Plaintiff: John William Leonardo; Plaintiff: Susan Anne Leonardo; First Defendant: Auckland City Council; Second Defendant: Willott Design Limited; Third Defendant: Kevin Hilliam; Fourth Defendant: Baccus Consultancy Limited; Fifth Defendant: Man Shing Lee; Fifth Defendant: Chan Yen Yeung; Sixth Defendant: John Dobier; Seventh Defendant: Pausma Wroughtiron Limited; First Third Party: Barfoot & Thompson Limited; Second Third Party: Ray Voigt trading as Compass Insurance Brokers; Third Third Party/applicant: QBE Insurance (International) Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 October 2008
Procedural Posture
Civil Professional Indemnity / Insurance / Interlocutory Application for Summary Judgment and Strike Out
Outcome
Application dismissed. Summary judgment and strike out applications refused.
Legal Topics
Insurance Exclusion Clauses, Professional Indemnity Insurance, Brokers' Agency and Authority, Section 10 Insurance Law Reform Act 1977, Summary Judgment and Strike Out Standards
Insurance Law Contract Law Agency Law Tort Negligent Misstatement Equity Estoppel Insurance Exclusion Clauses Professional Indemnity Insurance Brokers' Agency and Authority +2 more

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Parties

John William Leonardo

Plaintiff

Susan Anne Leonardo

Plaintiff

Auckland City Council

First Defendant

Willott Design Limited

Second Defendant

Kevin Hilliam

Third Defendant

Baccus Consultancy Limited

Fourth Defendant

Man Shing Lee

Fifth Defendant

Chan Yen Yeung

Fifth Defendant

John Dobier

Sixth Defendant

Pausma Wroughtiron Limited

Seventh Defendant

Barfoot & Thompson Limited

First Third Party

Ray Voigt trading as Compass Insurance Brokers

Second Third Party

QBE Insurance (International) Limited

Third Third Party/applicant

Procedural Posture

Civil Professional Indemnity / Insurance / Interlocutory Application for Summary Judgment and Strike Out

Legal Issues

  1. 1 Whether the Building Defects Exclusion precludes QBE's liability under the policy
  2. 2 Whether the broker (Compass/Mr Voigt) was agent of the insurer such that his statements bind QBE (actual or ostensible authority)
  3. 3 Whether representations by the broker estop or vary the insurer's right to rely on the exclusion

Ratio Decidendi

The Building Defects Exclusion, read literally and in context, excludes indemnity for claims arising directly or indirectly from leaks/water penetration including negligent failure to detect such defects in a non-invasive survey; however, factual disputes exist as to whether the broker was authorised by QBE to represent that the exclusion did not apply to consultancy work. Those disputes are material and not appropriate for resolution on summary judgment or strike out, so the interlocutory applications must be dismissed.

Court Disposition

Application dismissed. Summary judgment and strike out applications refused.

Orders

  • Application for summary judgment and strike out dismissed
  • Parties to file brief memoranda on costs not exceeding three pages within ten working days of judgment