The NSW Court of Appeal recently delivered an interesting judgment in the case of Sydney Trains v Argo Syndicate AMA1200 [2024] NSWCA 101.

The article discusses a case involving the Liquidator of Tempo Holidays and Berkley Insurance Australia. The plaintiffs alleged a breach of the director's duties by Mr Tully led to unsecured loans to the Global Treasury Arrangement (GTA) that were not repaid. The court found that the plaintiffs failed to prove the alleged breaches of duty by Tully or that any breach caused Tempo to suffer loss. Importantly the court also found that Tempo breached its duty of disclosure by not disclosing information which indicated it parlous financial state.

A recent ruling by the NSW Supreme Court shed light on the challenges associated with relying on a limitations defence in a case where a claimant suffered injuries from a ladder collapse at a residential property.

The case of Australian Securities and Investment Commission (ASIC) v Auto & General Insurance Company Ltd [2024] FCA 272 holds significant importance as it marks the first instance of the Federal Court applying the new unfair contract terms in the Australian Securities and Investments Commission Act 2001 (ASIC Act) to insurance contracts. 

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Holman Webb Lawyers is pleased to announce a range of promotions across our Sydney office – effective 1 July 2022:
 
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In this case note, Insurance Special Counsel Joanne Vesper takes a look at the recent decision in Foti v Biordi [2021] NSWDC 496, delivered by Her Honour Judge Gibson of the NSW District Court on 16 September 2021.  Holman Webb Lawyers acted for the Defendants.

On 25 June 2021, the High Court of Australia refused two insurers special leave to appeal the decision of the NSW Court of Appeal in HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296.

The NSW Court of Appeal unanimously held that insurers could not rely on an exclusion clause contained in certain policies to refuse indemnity for business interruption claims arising out of the COVID-19 pandemic.

The first test case does not mandate a blanket approach to policy coverage for all business interruption claims. Each will turn on the language of each policy wording and the circumstances of each claim.

Insurers have sought further judicial guidance on a number of other matters affecting the operation of business interruption policies in the context of COVID-19 in a second test case, due to be heard by the Federal Court later this year.

This article was originally published by the Law Society of New South Wales in the Law Society Journal, Issue 80 August 2021.

In the Full Federal Court decision of Liberty Mutual Insurance Company Australia Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 given on 20 July 2021, the Full Court addressed the construction and scope of thirdparty liability policies in the context of claims made by a building and construction company for losses occurring as a result of the manifestation of serious defects within a building, during the defects liability period.

Key Take Away

1. The Full Court maintained that in the event of ambiguity in an insurance policy, the context (including the market) in which the parties are operating, as well as the commercial purpose of the policy, must be considered (Icon’s Cross Appeal); and
2. Similarly, the Full Court considered that the context of Insurance Policies must always be considered in circumstances where the definition of ordinary words are not clear (QBE Appeal).
3. The Full Court ultimately prefers Policy Interpretation which refers to extrinsic contextual material where Policy terms are not clear.

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