Hamcor Pty Ltd v Marsh Pty Ltd

[2013] QCA 262

SUPREME COURT OF QUEENSLAND

CITATION:	Hamcor Pty Ltd & Anor v Marsh Pty Ltd & Anor [2013] QCA 262
PARTIES:	HAMCOR PTY LTD
ACN 010 141 429 (first appellant)
TERRENCE ARTHUR ARMSTRONG
(second appellant)
v MARSH PTY LTD
ABN 86 004 651 512 (first respondent)
OTAGO PTY LTD
ABN 90 010 161 501 (second respondent)
THE STATE OF QUEENSLAND
(not a party to the appeal)
FILE NO/S:	Appeal No 1887 of 2013 SC No 5764 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	7 August 2013
JUDGES:	Margaret McMurdo P, Muir JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.  The appeal be allowed, but only to the extent that:

a. paragraph 1 of the order of 20 February 2013 is

varied by deleting therefrom “and/or the ISR

Policy referred to in paragraphs 50(b) and 51(h)”

and “and/or the ISR Policy” and by deleting

“paragraphs 37-43 and 43(d)” and substituting

therefor “paragraphs 37-40 and 43(d)”; and

b. paragraph 2 of such order is varied so that it reads as follows:

“It is declared that the costs incurred by the

Plaintiffs in remediating their own land in

response to statutory notices and court orders, as

and 30 of the Further Amended Statement of

pleaded in paragraphs 29 (and particularised) indemnity under the renewed Primary Policy or the renewed Excess Policy referred to in paragraphs 37-40 and 43(d) of the Further

Amended Statement of Claim.”

2.    The appellants pay the respondents’ costs of the

appeal unless the appellants apply for leave to make
submissions as to costs within two days of the delivery
of these reasons.

CATCHWORDS: INSURANCE – THE POLICY – PRINCIPLES OF
CONSTRUCTION – where the appellants were required, by

a notice issued pursuant to the Environmental Protection Act 1994 (Qld) and orders made in Planning and Environment Court proceedings, to remediate land contaminated following

the application of water to a fire on the appellants‟ land –

where the appellants contended that, had they been competently advised by the respondents, they would have

been able to secure “the primary policy”, “the excess policy” and “the ISR policy” – where the primary judge held that

even if the appellants had been named in the primary policy, the excess policy or the ISR policy, the costs incurred by the appellants in remediating their own land in response to statutory notices and court orders were not capable of being

the subject of indemnity under those policies – where the

appellants submit that the primary judge erred in holding that, upon the proper construction of the primary policy, the

indemnity for a claim for “liability to pay compensation” for

pollution made against the insured contained an additional requirement that the compensation be paid by the insured to

the claimant – where the appellants contend that, unlike

damages,…