Certain Underwriters at Lloyd's Subscribing to Contract Number NCP106108663 v Aquagenics Pty Ltd (in liq)

The appeal involved a dispute regarding a professional indemnity insurance policy. Aquagenics Pty Ltd, in liquidation, sought coverage for claims arising from a design and construct contract. The insurer, Certain Underwriters at Lloyd's, denied liability based on the policy's definition of a "wrongful act" and exclusions. The primary judge ruled in favour of the insurer, and Aquagenics appealed. The key legal issues centred on whether the claim arose from a "wrongful act" within the policy's definition and whether this act occurred during the insured's professional activities, potentially triggering the exclusions. The court had to interpret the insuring clause and exclusions of the policy in light of the specific facts and contractual obligations.

The court examined the nature of the insured's professional activities and the obligations under the design and construct contract, particularly clauses 27 and 28, which involved technical and engineering expertise. The court found that the insured's alleged failures to meet these obligations did not constitute a "wrongful act" as defined by the policy. The court reasoned that the obligations were contractual in nature and did not involve a deliberate or wrongful act that could give rise to a claim for professional indemnity. Furthermore, the court held that any breach of the contract did not occur in the course of the insured's professional activities but rather in the execution of the contractual obligations. The court concluded that the exclusions applied, and the insurer was not liable for the insured's alleged failures.

The appeal was dismissed with costs, affirming the primary judge's decision. The court found no error in the reasoning that the insured's alleged failures did not constitute a "wrongful act" under the policy and that the exclusions applied. The insurer's denial of liability was upheld, and Aquagenics' appeal was unsuccessful. The final orders were for the appeal to be dismissed with costs.