Lambert Leasing Inc v QBE Insurance (Australia) Ltd

Lambert Leasing Inc (the appellant) appealed to the Court of Appeal of New South Wales against a decision concerning insurance disputes. The primary dispute involved claims by Lambert Leasing Inc against QBE Insurance (Australia) Ltd and other insurers (the respondents) under various insurance policies. A key issue was whether Lambert Leasing Inc was obliged to provide certain documents to the insurers to enable them to determine if conditions precedent to cover had been satisfied, and whether Lambert Leasing Inc could claim legal professional privilege over these documents. The proceedings also involved questions of double insurance and the interpretation of indemnity clauses.

The Court of Appeal was required to determine several legal issues. These included whether Lambert Leasing Inc was obliged to provide documents to the insurers despite claims of legal professional privilege, and whether the proceedings had been commenced prematurely. The court also considered whether documents in respect of which legal professional privilege was claimed at trial could be tendered on appeal. Further, the court had to determine issues relating to double insurance, specifically whether section 45 of the *Insurance Contracts Act 1984* (Cth) required the insured to have "entered into" both contracts of insurance, and the effect of a deed that purported to re-characterise an indemnity as a limited recourse loan. Finally, the court was asked to construe the word "use" in an indemnity clause under Virginian law, and whether it encompassed the leasing of aircraft or paying for maintenance.

The Court of Appeal applied principles of insurance law and contract interpretation. Regarding the disclosure of documents, the court considered the insurers' right to investigate claims against the insured's claim of privilege. The court analysed the concept of "entered into" in the context of double insurance, considering the nature of the agreements and the effect of subsequent deeds. The interpretation of the indemnity clause involved an examination of the relevant foreign law and the ordinary meaning of the word "use" in the context of the agreement.

The Court of Appeal made specific orders regarding the admission of further evidence on appeal, admitting certain documents under section 75A of the *Supreme Court Act 1970* (NSW) but excluding others. Ultimately, the appeal was dismissed, and the appellants were ordered to pay the costs of the respondents.