BOQ Ltd v Chartis Aust Insurance Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

BOQ Ltd v Chartis Aust Insurance Ltd [2012] QSC 319

PARTIES:

BANK OF QUEENSLAND LIMITED ACN 009 656 740

(applicant)

v

CHARTIS AUSTRALIA INSURANCE LIMITED ACN 004 727 753

(respondent)

FILE NO/S:

BS8719/12

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

3 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2012

JUDGE:

Jackson J

ORDER:

1.          The application is dismissed.

2.          The applicant pay the respondent’s costs of the application to be assessed.

CATCHWORDS:

INSURANCE – PROFESSIONAL IMDEMNITY – PROFESSIONAL LIABILITY POLICY - EXCLUSION - where policy covered liability for loss and defence costs  -where insured supplied financial services to customers – where customers made a claim against the insured in relation to the services – where insurer denied indemnity based on exclusion – whether policy responds to claim for indemnity and defence costs – whether exclusion applies to cover for defence costs.

DECLARATION – where insured contesting claim – where insurer has not accepted facts of claim -  whether declaratory relief should be granted in advance of determination of insured’s liability to claimant

Australian Securities and Investments Act 2001 (Cth)
Fair Trading Act 1989 (Qld)
Trade Practices Act 1974 (Cth), s 73

Adams v Lambert (2006) 228 CLR 409, referred
AMP Fire and General Insurance Company Ltd v Dixon [1982] VR 833, referred
Ashmere Co Pty Ltd v Beekink [2009] FCA 564, referred
Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99, referred
Bass v Perpetual Trustee Co Ltd (1999) 198 CLR 334, referred
Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500, referred
Edwards v Insurance Office of Australia Ltd (1933) 34 SR (NSW) 88, referred
FAI General Insurance Co Ltd (in liquidation) v Sherry (2002) 12 ANZ Insurance Cases 61, referred
Fitzgerald v Masters (1956) 95 CLR 420, referred
Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89, cited
Interchase Corporation (in liq) v FAI General Insurance Company Ltd [2000] 2 Qd R 301, referred
Intergraph Best (Vic) Pty ltd v QBE Insurance (Australia) Limited [2004] VSC 433, cited
Jeans v Bruce [2004] NSWSC 539, referred
Kings College v Allianz Insurance Australia Ltd [2004] 1 Qd R 394, referred
Lamont v Motor Accidents Board; Hodkinson v Motor Accidents Board: Jorgenson v Motor Accident Board [1983] 1 VR 88, referred
Major Engineering Pty Ltd v CGU Insurance Ltd (2011) 282 ALR 363, referred
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, referred
McCarthy v St Paul International Insurance Co Ltd (2007) 157 FCR 402, referred
Parker v Lewis (1873) 8 Ch App 1035, cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, referred
Post Office v Norwich Union Fire Insurance Society Ltd (1967) 2 QB 363, referred
Power v Markel Capital Ltd [2007] QCA 284, cited
QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186, referred

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Details
Case
[2012] QSC 319
Decision Date

CaseChat Overview and Summary

The case of BOQ Ltd v Chartis Aust Insurance Ltd involved a dispute between a financial services provider and its insurer over professional indemnity coverage. BOQ Ltd sought indemnity and defence costs from its insurer, Chartis Aust Insurance Ltd, following a claim by a customer regarding the services provided. Chartis denied indemnity, citing an exclusion clause in the policy. The matter was brought before the court to determine whether the policy responded to the claim for indemnity and defence costs, and if the exclusion applied to cover for defence costs.

The primary legal issues for the court to resolve were the interpretation of the insurance policy, particularly the exclusion clause, and whether declaratory relief should be granted in advance of determining BOQ’s liability to the claimant. The court needed to ascertain whether the exclusion clause precluded coverage for the defence costs and whether declaratory relief was appropriate given that the insurer had not accepted the facts of the claim and BOQ was contesting the claim.

The court found that the exclusion clause did not apply to the coverage for defence costs, thus the policy did respond to the claim for defence costs. However, the court also determined that declaratory relief was not appropriate in these circumstances because the insurer had not accepted the facts of the claim and BOQ was contesting the claim. Consequently, the application for declaratory relief was dismissed, and the applicant was ordered to pay the respondent’s costs of the application.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the respondent’s costs of the application to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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