Amlin Corporate Member Ltd v Austcorp Project No 20 Pty Ltd

Amlin Corporate Member Ltd brought an appeal against the decision of the primary judge in the Federal Court of Australia, challenging the interpretation of a professional indemnity insurance policy. The central issue was whether the Commercial List Response filed in the NSW Supreme Court proceedings constituted a "claim" under the policy, entitling the insurer to indemnify the insured party, Austcorp Project No 20 Pty Ltd. The court had to determine whether the Commercial List Response, which asserted a right to raise certain defences to an action on a guarantee, was a "claim" within the definition provided in the policy.

The court examined the definition of "claim" and "counter-claim" in the policy and considered whether the Commercial List Response met the criteria to be classified as a "claim." The Insurers argued that the Commercial List Response was a "counter-claim" because it was designed to counter the demands of LM against Mr Wong. However, the court found that the Commercial List Response did not contain any express claim of liability of LM to account to Bellpac or any claim for relief made by Bellpac. The expression "Equitable Compensation" in the Commercial List Response referred to a reduction of LM’s claim under the guarantee, not an allegation that LM had to pay an amount by way of equitable compensation to Bellpac. The court concluded that the Commercial List Response did not fall within the definition of "claim" under the policy.

The appeal was dismissed with costs, and the primary judge's decision was upheld. The court found that the Commercial List Response did not constitute a "claim" within the meaning of the insurance policy, and therefore, the insurer was not liable to indemnify the insured party. The court granted leave to appeal but dismissed the appeal, affirming the primary judge's decision.