Genworth Financial Mortgage Insurance Pty Limited v Peter Clisdell Pty Limited

Genworth Financial Mortgage Insurance Pty Limited filed proceedings against Peter Clisdell Pty Limited seeking a declaration and an injunction in relation to a mortgage indemnity policy. The dispute involved the interpretation and application of the terms of the mortgage indemnity policy, with Genworth asserting that the policy had been breached by Peter Clisdell. The matter came before the Supreme Court of New South Wales, specifically Justice Brereton. The primary legal issues before the court were whether Peter Clisdell had breached the terms of the mortgage indemnity policy and, if so, the extent of any damages or relief that should be awarded.

Justice Brereton examined the submissions and evidence presented by both parties. The court considered the drafting and interpretation of the policy, the conduct of Peter Clisdell, and the implications of any potential breach. The judge determined that Peter Clisdell was entitled to amend its defence to address specific allegations made by Genworth. Consequently, the court granted leave for the respondents to amend their defence as per the draft annexure “Y” to the affidavit of Richard Andrew Oldfield dated 4 September 2009. Additionally, the hearing previously scheduled for 7-11 and 17 September 2009 was vacated due to the need for the respondents to amend their defence. The respondents were ordered to pay the cross-defendant’s costs incurred from the vacated hearing date, to be agreed upon or taxed, and to be paid forthwith. Further, a hearing to determine the costs between the applicant and the respondents concerning the vacation of the hearing date was set for 17 September 2009, and the proceedings were scheduled for directions on the same day.

The final orders included directions for the respondents to file and serve any evidence in respect of the costs by 12.00 pm on 11 September 2009, with the applicant required to file and serve any evidence in reply by 12.00 pm on 16 September 2009. The hearing on the costs issue was listed for 10.15 am on 17 September 2009, followed by a directions hearing at 2.15 pm on the same day.