Prosperity Advisers Pty Ltd v Secure Enterprises Pty Ltd - [2012] NSWCA 192

Court of Appeal

New South Wales

Case Title: Prosperity Advisers Pty Limited v Secure Enterprises Pty Limited t/a Strathearn Insurance Brokers

Medium Neutral Citation: [2012] NSWCA 192

Hearing Date(s): 9 May 2012

Decision Date: 25 June 2012

Jurisdiction:

Before:
Macfarlan JA at 1; Barrett JA at 2; Tobias AJA at 3

Decision:
Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
APPEAL - insurance broker's advice to insured concerning insurance policy - whether the primary judge was in error in finding that the appellant had not suffered any relevant loss as a consequence of the respondent's wrongdoing - whether primary judge erred in finding that the appellant did not have a substantial prospect of acquiring a policy with the requisite protection - whether evidence that a more advantageous policy would be available and accepted - whether the primary judge made a number of factual errors in relation to conclusion that no such evidence.

DAMAGES - whether the appellant was entitled to recover damages to compensate it for that lost opportunity - principles applicable to assessment of damages for a lost chance.

COSTS - indemnity costs - whether there was a genuine offer of compromise.

Legislation Cited:
Trade Practice Act 1974
Uniform Civil Procedure Rules

Cases Cited:
Baiyai Pty Limited v Guy [2009] NSWCA 65
Barakat and others v Bazdarova [2012] NSWCA 140
Bennette v Cohen [2009] NSWCA 162
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Daniels v Anderson (1995) 37 NSWLR 438
Dean v Stockland Property Management (No 2) [2010] NSWCA 141
Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1
Heenan v DiSisto [2008] NSWCA 25; (2008) 13 BPR 25213
Hobartville Studd Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
McCrohon v Harith [2010] NSWCA 67
Malec v J C Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638
Miwa Pty Limited v Siantan Properties Pty Limited (No 2) [2011] NSWCA 344
Prosperity Advisers Pty Ltd & Anor v Secure Enterprises Pty Ltd t/as Strathearn Insurance Brokers Pty Ltd [2011] NSWSC 35
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
Uniting Church Property Trust v Takacs (No 2) [2008] NSWCA 172

Texts Cited:

Category: Principal judgment

Parties:
PROSPERITY ADVISERS PTY LIMITED (subject to a Deed of Company Arrangement) (ACN 099 036 361) (first appellant)
PROSPERITY ADVISERS (NEWCASTLE) PTY LIMITED (ACN 146 592 752) (second appellant)
SECURE ENTERPRISES PTY LIMITED t/as Strathearn Insurance Brokers (ACN 060 973 908) (respondent)

Representation

- Counsel:
Counsel:
P…

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.

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Details

Case: [2012] NSWCA 192
Decision Date: 25 June 2012

CaseChat Overview and Summary

Prosperity Advisers Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning advice provided by Secure Enterprises Pty Ltd, an insurance broker, to Prosperity Advisers regarding an insurance policy. The core of the dispute revolved around whether Prosperity Advisers had suffered a relevant loss due to Secure Enterprises' alleged wrongdoing, specifically whether the primary judge erred in concluding that Prosperity Advisers did not have a substantial prospect of acquiring a policy with the requisite protection.

The Court of Appeal was required to determine whether the primary judge had made factual errors in concluding that there was no evidence that a more advantageous policy would have been available and accepted by Prosperity Advisers. This involved assessing the principles applicable to the assessment of damages for a lost chance, and whether Prosperity Advisers was entitled to recover compensation for such a lost opportunity. The appeal also touched upon the issue of costs, specifically whether indemnity costs were warranted, and whether there had been a genuine offer of compromise.

The Court of Appeal dismissed the appeal. The judges found no error in the primary judge's conclusion that Prosperity Advisers had not suffered any relevant loss as a consequence of Secure Enterprises' conduct. This was based on the primary judge's assessment of the evidence, which did not establish that Prosperity Advisers had a substantial prospect of acquiring a more advantageous policy. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Prosperity Advisers Pty Limited v Secure Enterprises Pty Limited t/a Strathearn Insurance Brokers
Medium Neutral Citation:	[2012] NSWCA 192
Hearing Date(s):	9 May 2012
Decision Date:	25 June 2012
Jurisdiction:
Before:	Macfarlan JA at 1; Barrett JA at 2; Tobias AJA at 3
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - insurance broker's advice to insured concerning insurance policy - whether the primary judge was in error in finding that the appellant had not suffered any relevant loss as a consequence of the respondent's wrongdoing - whether primary judge erred in finding that the appellant did not have a substantial prospect of acquiring a policy with the requisite protection - whether evidence that a more advantageous policy would be available and accepted - whether the primary judge made a number of factual errors in relation to conclusion that no such evidence. DAMAGES - whether the appellant was entitled to recover damages to compensate it for that lost opportunity - principles applicable to assessment of damages for a lost chance. COSTS - indemnity costs - whether there was a genuine offer of compromise.
Legislation Cited:	Trade Practice Act 1974 Uniform Civil Procedure Rules
Cases Cited:	Baiyai Pty Limited v Guy [2009] NSWCA 65 Barakat and others v Bazdarova [2012] NSWCA 140 Bennette v Cohen [2009] NSWCA 162 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 Daniels v Anderson (1995) 37 NSWLR 438 Dean v Stockland Property Management (No 2) [2010] NSWCA 141 Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1 Heenan v DiSisto [2008] NSWCA 25; (2008) 13 BPR 25213 Hobartville Studd Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 McCrohon v Harith [2010] NSWCA 67 Malec v J C Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Miwa Pty Limited v Siantan Properties Pty Limited (No 2) [2011] NSWCA 344 Prosperity Advisers Pty Ltd & Anor v Secure Enterprises Pty Ltd t/as Strathearn Insurance Brokers Pty Ltd [2011] NSWSC 35 Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 Uniting Church Property Trust v Takacs (No 2) [2008] NSWCA 172
Texts Cited:
Category:	Principal judgment
Parties:	PROSPERITY ADVISERS PTY LIMITED (subject to a Deed of Company Arrangement) (ACN 099 036 361) (first appellant) PROSPERITY ADVISERS (NEWCASTLE) PTY LIMITED (ACN 146 592 752) (second appellant) SECURE ENTERPRISES PTY LIMITED t/as Strathearn Insurance Brokers (ACN 060 973 908) (respondent)
Representation
- Counsel:	Counsel: P…