| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5266 of 1996
| MLC LTD | Plaintiff |
| v | |
| J & W MANAGEMENT SERVICES PTY LTD | First Defendant |
| and | |
| KEVIN STANLEY ROBERT SEDAWIE (in his capacity as administrator ad litem of the estate of CHARLES WARRICK MAHONY) | Second Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 8, 9, 10, 13 and 14 November 2000 |
DATE OF JUDGMENT: | 24 July 2001 |
CASE MAY BE CITED AS: | MLC Ltd v J&W Management Services Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2001] VSC 241 |
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Insurance - agent of insurer - duty of agent to insurer - agents agreement - duty of agent to insurer implied as a matter of law - notice of cancellation of policy – time when notice of cancellation may be given by insurer - whether insurer able to give notice of cancellation before date on which premium due – policy considered by insurer to be no longer in force when claim made on policy – decision to meet claim, whether reasonable – whether director/employee of company being agent of insured liable for acts and omissions of agent company – whether failure of agent to inform insured of matters constituted breach of s. 52 of Trade Practices Act – contributory negligence – whether damages to be awarded under s. 82 of the Trade Practices Act may be reduced for fault of plaintiff – whether contributory negligence able to be relied on in circumstances where damage caused by breach of express term of contract.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G.A.P. Nettle QC with Mr M.K. Moshinsky | Wisewoulds |
| For the Defendant | Mr G.A. Uren QC with Mr C. Macauley | Ebsworth & Ebsworth |
HIS HONOUR:
In these proceedings the plaintiff claims damages against the defendants in the sum of $531,615.74. The causes of action relied on by the plaintiff are that the first defendant and Charles Warwick Mahony deceased (“the deceased”) acted in breach of agency retainer agreements, that respectively they engaged in misleading and deceptive conduct contrary to the provisions of s. 52 of the Trade Practices Act 1974 (Cth) and s. 11 of the Fair Trading Act 1985 (Vic) and that as business agents of the plaintiff they were negligent.
The plaintiff is a life insurance company. It is the successor in law of Capital Financial Group Ltd (“Capita”) which was formerly known by the name of City Mutual Life Assurance Society Ltd (“City Mutual”). The second defendant is sued as the administrator ad litem of the estate of the deceased. The deceased was at all material times a director of the first defendant.
By an agreement made on 17 September 1982 City Mutual appointed the deceased as its agent and sales representative. By a further agreement dated 31 January 1986 City Mutual appointed the deceased as its agent with authority from 1 January 1986 to “arrange contracts of insurance for all of City Mutual’s products”. It was provided by cl. 3(b) thereof:
“The…
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- Case
- [2001] VSC 241
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the agency relationship between the parties, focusing on the duties owed by J&W Management Services Pty Ltd to MLC Ltd. It held that the duty of an insurance agent to the insurer is implied by law and that J&W Management Services Pty Ltd breached this duty by not informing MLC Ltd of the cancellation of the insurance policy. The court found that the insurer could lawfully give notice of cancellation prior to the premium due date and that the decision by MLC Ltd to refuse to pay the claim was reasonable given the circumstances. Regarding personal liability, the court determined that the director of J&W Management Services Pty Ltd could not be held liable for the actions of the company as the company was a separate legal entity. Finally, the court considered whether contributory negligence could be relied upon to reduce damages awarded under the Trade Practices Act and concluded that it could not be applied in circumstances where the damage resulted from a breach of an express term of the contract.
The court's final orders were that MLC Ltd was not liable for the claim made by the insured, and that J&W Management Services Pty Ltd was liable for any damages owed to the insured under the insurance policy. The court also ruled that the director of J&W Management Services Pty Ltd was not personally liable for the actions of the company, and that contributory negligence could not be used to reduce damages awarded under the Trade Practices Act in this case.
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