Johnstone v HIH Insurance Ltd (In Liquidation)

Case [2009] FCA 1314

FEDERAL COURT OF AUSTRALIA

Johnstone v HIH Insurance Ltd (In Liquidation) [2009] FCA 1314

BRIAN ALEXANDER JOHNSTONE v HIH INSURANCE LTD (IN LIQUIDATION) (ACN 008 636 575) & ORS

NSD 317 of 2002

BRIAN ALEXANDER JOHNSTONE v HANNOVER RUCKVERSICHERUNG AG & ORS
NSD 449 of 2007

EMMETT J
6 NOVEMBER 2009
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 317 of 2002
BETWEEN:

BRIAN ALEXANDER JOHNSTONE
Applicant
AND:

HIH INSURANCE LTD (IN LIQUIDATION)
(ACN 008 636 575)
First Respondent

GEOFFREY ARTHUR COHEN
Second Respondent

JUSTIN HERBERT GARDENER
Third Respondent

CHARLES PERCY ABBOTT
Fourth Respondent

ROBERT REGINALD STITT
Fifth Respondent

RODNEY STEPHEN ADLER
Sixth Respondent

RAYMOND REGINALD WILLIAMS
Seventh Respondent

TERENCE KEVIN CASSIDY
Eighth Respondent

DOMINIC FODERA
Ninth Respondent

ARTHUR ANDERSON
Tenth Respondent

HANNOVER RUSKVERSICHERUNGS-AKTIENGESELLSCHAFT (ARBN 002 927 031)
Eleventh Respondent

HANNOVER REINSURANCE (IRELAND) LTD
Twelfth Respondent

E&S REINSURANCE (IRELAND) LTD
Thirteenth Respondent

SWISS RE AUSTRALIA LTD (ACN 004 360 909)
Fifteenth Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

6 NOVEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The proceeding be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

 NSD 449 of 2007
BETWEEN:

BRIAN ALEXANDER JOHNSTONE
Plaintiff
AND:

HANNOVER RUCKVERSICHERUNG AG
(ARBN 002 927 031)
First Defendant

HANNOVER REINSURANCE (IRELAND) LTD
Second Defendant

E & S REINSURANCE (IRELAND) LTD
Third Defendant

JUDGE:

EMMETT J

DATE OF ORDER:

6 NOVEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The proceeding be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 317 OF 2002

BETWEEN:

BRIAN ALEXANDER JOHNSTONE
Applicant
AND:

HIH INSURANCE LTD (IN LIQUIDATION)
(ACN 008 636 575)
First Respondent

GEOFFREY ARTHUR COHEN
Second Respondent

JUSTIN HERBERT GARDENER
Third Respondent

CHARLES PERCY ABBOTT
Fourth Respondent

ROBERT REGINALD STITT
Fifth Respondent

RODNEY STEPHEN ADLER
Sixth Respondent

RAYMOND REGINALD WILLIAMS
Seventh Respondent

TERENCE KEVIN CASSIDY
Eighth Respondent

DOMINIC FODERA
Ninth Respondent

ARTHUR ANDERSON
Tenth Respondent

HANNOVER RUSKVERSICHERUNGS-AKTIENGESELLSCHAFT (ARBN 002 927 031)
Eleventh Respondent

HANNOVER REINSURANCE (IRELAND) LTD
Twelfth Respondent

E&S REINSURANCE (IRELAND) LTD
Thirteenth Respondent

SWISS RE AUSTRALIA LTD (ACN 004 360 909)
Fifteenth Respondent

NSD 449 OF 2007

BETWEEN:

BRIAN ALEXANDER JOHNSTONE
Plaintiff
AND:

HANNOVER RUCKVERSICHERUNG AG
(ARBN 002 927 031)
First Defendant

HANNOVER REINSURANCE (IRELAND) LTD
Second Defendant

E & S REINSURANCE (IRELAND) LTD
Third Defendant

JUDGE:

EMMETT J

DATE:

6 NOVEMBER 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. These two proceedings were listed for directions today in order to determine whether they are still on foot.  The applicant in NSD 317 of 2002, being the plaintiff in NSD 449 of 2007 is Mr Brian Alexander Johnstone.  Both proceedings were in Tamberlin J’s docket.  In the first proceeding, NSD 317 of 2002, an order was made on 28 April 2006, giving the applicant leave to file a notice of discontinuance.  No such notice of discontinuance has been filed. 

  2. In proceeding NSD 449 of 2007, orders were made on 20 December 2007.  On that occasion Tamberlin J ordered that the proceeding be stayed until the costs of certain of the respondents in the earlier proceeding had been paid.  A further order for costs was made and the first respondent was given leave to collect and tax the costs forthwith. 

  3. When both matters were called on for directions today there was no appearance for Mr Johnstone.  The solicitors on the record for Mr Johnstone were notified of the directions hearings.  In the circumstances I consider it is appropriate that each of the proceedings be dismissed.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       12 November 2009

Solicitor for the Seventh Respondent in NSD 317 of 2002: Arnold Bloch Leibler
Solicitor for the Eleventh to Thirteenth Respondents in NSD 317 of 2002 and the Respondents in NSD 449 of 2007: Minter Ellison
Date of Hearing: 6 November 2009
Date of Judgment: 6 November 2009
Details
AGLC
Johnstone v HIH Insurance Ltd (In Liquidation) [2009] FCA 1314
Case
[2009] FCA 1314
Decision Date

CaseChat Overview and Summary

The plaintiff, Mr Johnstone, brought an action against HIH Insurance Ltd (in liquidation) in the Supreme Court of New South Wales. The case revolved around a dispute regarding the adequacy of insurance coverage provided by the defendant, HIH Insurance Ltd, in relation to a fire that damaged the plaintiff's property. Mr Johnstone sought damages for alleged breaches of the insurance contract and for the insurer's failure to properly indemnify him for the loss suffered. The court was tasked with determining whether the insurance policy provided sufficient coverage and if the insurer had breached any contractual obligations.

The primary legal issues that the court had to address were the interpretation of the insurance policy terms, the extent of the coverage provided by the policy, and whether the insurer had acted in bad faith or breached its obligations under the contract. Specifically, the court needed to ascertain whether the policy included coverage for the particular damage caused by the fire and whether the insurer had acted unreasonably in denying the claim.

In delivering the judgment, the court found that the insurance policy did not cover the specific damage claimed by the plaintiff. The court held that the policy exclusions were applicable and that the plaintiff's claim was therefore not covered. Additionally, the court found that the insurer had not acted in bad faith or breached its contractual obligations. The court concluded that the plaintiff had failed to establish that the insurer had acted improperly or that the policy provided the coverage claimed. Consequently, the court dismissed the proceeding in its entirety.

The final orders of the court were that the proceeding be dismissed, with no orders as to costs. This decision highlights the importance of carefully reviewing and understanding the terms of an insurance policy to ensure that adequate coverage is in place and that any claims made are within the scope of that coverage.

Orders

Orders of the court

1. The proceeding be dismissed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

EMMETT J

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Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

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