AXIS Specialty Europe SE (Australia Branch), in the matter of AXIS Specialty Europe SE (Australia Branch)

The case involved AXIS Specialty Europe SE (Australia Branch) seeking dispensation from compliance with section 17C(2)(c) of the Insurance Act 1973 (Cth) in relation to a transfer of its insurance business to Swiss Re International SE. The key issue before the court was whether the court should exercise its discretion to make the dispensation orders sought by the applicant. The court needed to determine whether the applicant had made adequate arrangements for notifying affected policyholders of the scheme and whether compliance with section 17C(2)(c) was necessary given the nature of the scheme and the circumstances attending its preparation.

The court considered that the applicant had made adequate arrangements for notifying affected policyholders of the proposed transfer. Only 1,883 out of the 11,563 identified affected policyholders could not be located. However, the applicant intended to send the approved summary to all policyholders identified and, where a valid address of such affected policyholders could not be obtained, to the addresses of the broker or agent who placed the business when it was originally underwritten. In addition, the applicant had made further arrangements to notify affected policyholders of the proposed transfer, including making available the proposed scheme, approved summary and actuarial report on the applicant's website and publishing the notice in a range of metropolitan newspapers as well as in New Zealand. The court was also satisfied that the implementation of the scheme would not have a materially adverse impact on the affected policyholders, given the actuarial evidence.

The court concluded that it should exercise its discretion to make the dispensation orders sought by the applicant. The court was satisfied that the applicant had made adequate arrangements for notifying affected policyholders of the proposed transfer and that compliance with section 17C(2)(c) was not necessary given the nature of the scheme and the circumstances attending its preparation.

The court made the dispensation orders sought by the applicant, as varied by an order made on 12 December 2016. The application filed on 25 November 2016 was listed for hearing on 9 February 2017.