Count Financial Limited v Pillay

The case of Count Financial Limited v Pillay involved a dispute where Count Financial, a financial advisory firm, sought leave to directly pursue its professional indemnity insurer, Count Financial's former accountant. The primary issue was whether Count Financial had a reasonably arguable claim against Pillay, the accountant, and if Pillay was unlikely to be able to meet any judgment that may be entered against him. Additionally, the court had to determine if it was reasonably arguable that the insurance policy would cover the claim and whether any exclusions in the policy were applicable.

The legal issues centred on the provisions of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), which allows a plaintiff to directly proceed against an insurer if certain conditions are met. The court had to examine if Count Financial's claim against Pillay was reasonably arguable, assess Pillay's financial standing, and consider whether the insurance policy covered the alleged professional negligence. The exclusions in the policy, particularly those relating to professional negligence, also needed to be examined to determine their relevance to the claim.

In reaching its decision, the court thoroughly analysed the evidence provided by Count Financial. It concluded that Count Financial had a reasonably arguable claim against Pillay for professional negligence. The court found that Pillay was unlikely to be able to meet any judgment due to his financial circumstances. Furthermore, the court determined that it was reasonably arguable that the policy responded to the claim, notwithstanding the exclusions for professional negligence. Consequently, the application for leave to proceed directly against the insurer was granted.

The final orders included granting Count Financial leave to proceed directly against Pillay's professional indemnity insurer, allowing the matter to progress under the provisions of the Act. The insurer was required to respond to the proceedings as if Pillay had been named as a party.