All Class Insurance Brokers Pty Ltd (in liquidation) v Chubb Insurance Company of Australia (in liquidation)

[2019] FCA 928

FEDERAL COURT OF AUSTRALIA

All Class Insurance Brokers Pty Ltd (in liquidation) v Chubb Insurance Company of Australia (in liquidation) [2019] FCA 928

File number:	NSD 714 of 2019
Judge:	ALLSOP CJ
Date of judgment:	14 June 2019
Cases cited:	Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27
Date of hearing:	14 June 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	Ms I J King
Solicitor for the Applicant:	MCW Lawyers
Counsel for the Respondent:	Mr S Keizer
Solicitor for the Respondent:	YPOL Lawyers

ORDERS

NSD 714 of 2019

BETWEEN:

ALL CLASS INSURANCE BROKERS PTY LTD (IN LIQUIDATION) ACN 095 825 513

Applicant

AND:

CHUBB INSURANCE COMPANY OF AUSTRALIA (IN LIQUIDATION) ACN 003 710 647

Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	14 JUNE 2019

THE COURT ORDERS THAT:

1.That the parties confer with Registrar Farrell as soon as practicable to permit him to prepare a report to me by, if possible, the end of July or before, dealing with the matters to which I have referred.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

1. In this matter, the liquidator of the applicant brings a claim against Chubb Insurance under the crime coverage section of a commercial policy that was issued to an insured, being an insurance broker.  The brokerage company was run by a Mr Bowmaker who was the sole director and apparently the sole employee.  Mr Bowmaker was the person who caused certain financial depredations to occur to a trust account, it is alleged.  It is unnecessary to deal with how he did that or what precise form it took. 

2. The matter has some antiquity, the discovery by the liquidator having taken place in 2013.  The case was only begun in April 2019. 

3. The insurer has filed a statement of position in which it sets out what it says are its defences and also the inadequacies of information it says it has received. The issues in the case will include a number which are set out in that statement of position, which are that: the policy was taken out following fraudulent non-disclosure by Mr Bowmaker; that the claim is now statute-barred; that Mr Bowmaker was not an employee but, if he was, a particular exclusion applies; and that another exclusion applies at cl IX(b), which is a condition or an exclusion clause to which s 54 of the Insurance Contracts Act 1984 (Cth) might well apply.

4. There was an issue about the wrong insurer being sued after the novation of liabilities and the transfer to another company.  That will be sorted out in a civilised fashion without the need for the court’s intervention. 

5. I propose to direct the parties to confer with and cooperate with Commercial Registrar Farrell in relation to a number of things in the next month:  first, the preparation of an agreed statement of facts to the extent that that can be agreed; second, the preparation of a list of issues raised in the case in the form of a decisional tree; third, the collection and preparation of a coherent bundle of documents in chronological form that would suffice for the hearing of the matter; and fourth, a program for the filing of any evidence, lay or expert.

6. There is an issue that arises in this case as to Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27 in the New South Wales Court of Appeal, which may or may not determine the question of limitations. That question, and the importance of that question of limitations being determined by that case, may lead to the utility of either a stated case to the Full Court or the hearing of at least part of a case being heard by the Full Court and there may be other matters that discussion with Registrar Farrell throws up utility in his assisting the parties with, but the only order I make today is that the parties confer with Registrar Farrell as soon as practicable to permit him to prepare a report to me by, if possible, towards the end of July or before, dealing with the matters to which I have referred.

7. Within those discussions with Registrar Farrell, there should be a discussion about the most appropriate time for there to be a mediation in this matter and that can be, if Registrar Farrell thinks it is appropriate, part of the report that he gives the Court arising from those discussions with the parties.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate:

Dated:       14 June 2019