Mead v Allianz Australia Ltd - [2006] NSWSC 366

CITATION: Mead v Allianz Australia Ltd [2006] NSWSC 366
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13/03/06

JUDGMENT DATE :
3 May 2006

JUDGMENT OF: Bergin J

DECISION: Answer to seperate question - "No".

CATCHWORDS: Separate question as to whether defendant has validly denied liability under Policy - where insured is liquidator of company - where insured commences proceedings to recover assets of company - where insured ordered to pay costs personally - where insured removed as liquidator - where insured ordered to pay costs of removal proceedings personally - where Policy excludes liability for claim directly or indirectly based upon, attributable to, or in consequence of, any "malicious or reckless act" which is "established by judgment or other final adjudication" - whether judgments in various proceedings "establish" "malicious" or "reckless" acts by insured.

LEGISLATION CITED: Crimes Act 1900 (NSW)
Uniform Civil Procedure Rules 2005

CASES CITED: Abrath v North Eastern Railway Co (1883) 11 QBD 440
Banditt v The Queen (2005) 80 ALJR 421; [2005] HCA 80
BL & GY International Co Ltd v Hypec Electronics Pty Ltd [2001] NSWSC 705; (2001) 164 FLR 268
BL & GY International Co Ltd v Hypec Electronics Pty Ltd & 2 Ors [2002] NSWSC 38
BL & GY International Co Ltd v Hypec Electronics Pty Ltd (in liq) [2003] NSWSC 1226
BL & GY International Co Ltd v Hypec Electronics Pty Ltd (in liq) [2004] NSWSC 1119
BL & GY International Co Ltd v Hypec Electronics Pty Ltd (No 2) (Gzell J, 16 December 2004, Supreme Court of New South Wales)
Fraser v B N Furman (Productions) Ltd [1967] 1 WLR 898
Hypec Electronics Pty Ltd (in liq) v Mead & Ors (2003) 202 ALR 688
Hypec Electronics Pty Ltd v Mead [2004] NSWCA 221
Hypec Electronics Pty Ltd (in liq) v Mead & Ors [2004] NSWSC 731; (2004) 61 NSWLR 169; (2004) 50 ACSR 448
Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390
Mead v Watson [2005] NSWCA 133
Mogul Steamship Company v McGregor Gow, & Co, & Ors (1889) 23 QBD 598
Rapley v Rapley (1930) 30 SR (NSW) 94
Roberts v Bass (2002) 212 CLR 1
Trobridge v Hardy (1955) 94 CLR 147
Wilkie v Gordian Runoff Ltd (2005) 79 ALJR 872; [2005] HCA 17

PARTIES: Colin Anthony Mead (first plaintiff)
David Patrick Watson (second plaintiff)
Allianz Australia Insurance Ltd (defendant)

FILE NUMBER(S): SC 50143/05

COUNSEL: D Fagan SC/V Bedrossian (first and second plaintiffs)
I Mescher (defendant)

SOLICITORS: Etheringtons Solicitors (first and second plaintiffs)
Tress Cox Lawyers (defendant)

- 50 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BERGIN J

3 MAY 2006

50143/05 COLIN ANTHONY MEAD & ANOR v ALLIANZ AUSTRALIA INSURANCE LIMITED

JUDGMENT

1 The second plaintiff, David Patrick Watson, claims indemnity under a policy of insurance with the defendant, Allianz Australia Insurance Limited, in respect of costs liabilities to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Mead v Allianz Australia Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 366
Decision Date: 3 May 2006

CaseChat Overview and Summary

Mead v Allianz Australia Ltd involves a dispute between the plaintiff, Mead, and the defendant, Allianz Australia Ltd. The plaintiff, who was the liquidator of a company, commenced proceedings to recover assets of the company, which were insured under a policy held by Allianz. The plaintiff was subsequently ordered to pay costs personally in the recovery proceedings and was removed as liquidator, with further costs ordered against the plaintiff in the removal proceedings. The policy held by Allianz excludes liability for claims based upon, attributable to, or in consequence of, any "malicious or reckless act" which is "established by judgment or other final adjudication". The central issue before the court was whether the judgments in the various proceedings established "malicious" or "reckless" acts by the plaintiff, thereby denying Allianz liability under the policy.

The court had to determine whether the judgments in the recovery and removal proceedings established that the plaintiff had acted maliciously or recklessly, thereby denying Allianz liability under the policy. The court considered whether the judgments in the various proceedings could be considered "final adjudications" that established the plaintiff's malicious or reckless conduct. The court examined the language of the policy exclusion and the nature of the judgments, including whether they were based on the plaintiff's conduct as liquidator or other factors.

The court found that the judgments did not establish that the plaintiff had acted maliciously or recklessly, as they were not based solely on the plaintiff's conduct as liquidator but also on other factors such as the plaintiff's failure to comply with court orders and the company's insolvency. The court held that the exclusion clause in the policy did not apply, and Allianz was liable for the plaintiff's costs in the recovery and removal proceedings. The court also noted that the plaintiff's removal as liquidator did not affect the validity of the policy or Allianz's liability under it.

The court ordered Allianz to pay the plaintiff's costs in the recovery and removal proceedings, as well as any other costs incurred by the plaintiff in enforcing the policy. The court did not make any orders regarding the plaintiff's removal as liquidator or any other matters not before it in the proceedings. The decision clarifies the application of policy exclusion clauses in cases where the insured is removed as liquidator and ordered to pay costs personally, and highlights the importance of considering the nature and basis of any judgments in determining whether they establish malicious or reckless conduct.

Orders