Kerembla Pty Ltd v XL Insurance Company SE, trading as Brooklyn Underwriting

Kerembla Pty Ltd sought a declaration in relation to a public and product liability insurance policy from XL Insurance Company SE, trading as Brooklyn Underwriting. The claim arose following a collision of mining equipment with a bridge. The primary issue for the court was whether certain write-backs to an exclusion clause were applicable to the claim. Specifically, the court needed to determine if the write-back in subclause 3.22(f) captured the damage caused by the loading of the vehicle, which was being used as a tool of trade on a worksite.

The court considered the language used in the policy, particularly subclause 3.22(f), which was a write-back in relation to exclusion clauses 3.22(a) and (b). The court concluded that subclause 3.22(f) should be read on its own terms without importing language from the insuring clause. The omission of specific language in subclause 3.22(f) was deemed intentional, as the parties had readily available language to manifest such an intention if they had intended to refer to damage caused by or arising out of the loading or unloading of any vehicle. Therefore, the court found that subclause 3.22(f) did not apply to the damage caused by the loading of the vehicle in this case.

Based on this reasoning, the court granted the declaration sought by Kerembla. The court also ordered the exchange of written submissions and affidavits on the question of costs, with Kerembla filing first. The second respondent was required to file its submissions and affidavits by 4 August 2023, with Kerembla to file its reply by 11 August 2023. The costs were to be decided on the papers.