CATCHWORDS
INSURANCE - "claims made and notified" policy - insurer (FAI) denying indemnity to insured (PMS) in respect of judgment against PMS in favour of TCF - PMS asserting right to indemnity under the policy - TCF applying for leave to bring an action against FAI pursuant to sub-s 6 (4) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) before seeking to enforce judgment against PMS - whether s 6 Law Reform (Miscellaneous Provisions) Act applies to claims made and notified policies which come into existence after the event giving rise to the insured's liability to third party claimant - whether TCF should be granted leave to bring an action against FAI as a matter of discretion.
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6
AFG Insurances Ltd v Andjelkovic (1980) 47 FLR 348 (ACT/Blackburn J); (1981) 54 FLR 398 (FCA/FC)
Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399
Cambridge Credit Corporation Ltd (Receivers Appointed) v Lissenden (1987) 8 NSWLR 411 (Clarke J)
Capita Financial Group Ltd v Triden Properties Ltd, unreported, 6 September 1993 (NSW/Cole J)
FAI (NZ) General Insurance Co Ltd v Blundell & Brown Ltd [1994] 1 NZLR 11
Grimson v Aviation & General (Underwriting) Agents Pty Ltd (1995) 25 NSWLR 422 (CA)
Manettas v Underwriters at Lloyds (1993) 7 ANZ Insurance Cases 61-180 (NSW/Cole J)
National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1996) 138 ALR 409 (FCA/Lindgren J)
New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469 (CA)
Oswald v Bailey (1987) 11 NSWLR 715 (CA)
Ratcliffe v Border Homes Ltd (1987) 9 NSWLR 390 (Hunt J)
Schipp v Cameron (1995) 8 ANZ Insurance Cases 61-256 (NSW/Young J)
FAI GENERAL INSURANCE CO LIMITED v BRIAN ALBERT McSWEENEY & ORS
No NG 312 of 1992
TRAVEL COMPENSATION FUND v FAI GENERAL INSURANCE CO LIMITED
No NG 948 of 1992
REASONS FOR JUDGMENT (PART I)
Lindgren J
Sydney
12 March 1997
TABLE OF CONTENTS
REASONS FOR JUDGMENT (PART I)
INTRODUCTION........ ........ ........ ........ ........ 1
Parties........ ........ ........ ........ ........ ..... 1
The TAG proceeding........ ........ ........ ........ .. 2
The TCF proceeding........ ........ ........ ........ .. 4
Appearances on the hearing of the two
insurance proceedings........ ........ ........ ...... 5
Development of a connection between the
TAG facts and the TCF facts........ ........ ........ 5
OUTLINE OF THE PRESENT TWO INSURANCE
PROCEEDINGS........ ........ ........ ........ ........ 8
Outline of the TAG insurance proceeding........ .... 8
Outline of the TCF insurance proceeding........ .... 17
OUTLINE OF THE TAG FACTS AND THE TCF FACTS........ . 30
The TAG facts and proceeding - Reasons for
Judgment of Olney J delivered on 28 February
1992 based on the hearing on 22-25, 29-31
July 1991, 1-2, 5-6 August 1991, 21-22
October 1991........ ........ ........ ........ ....... 31
The TCF facts and proceeding - Reasons for
Judgment of Wilcox J delivered on 2 December
1992 based on hearing…
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- Case
- [1997] FCA 152
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