Legal Research
Cases
Quintano v BW Rose Pty Ltd

Quintano v BW Rose Pty Ltd

Link copied

Case Copied 5 August 2008 16 min read

Contents

On this page

CITATION: Quintano v B W Rose Pty Ltd & ors [2008] NSWSC 793

HEARING DATE(S): 30 July 2008

JUDGMENT DATE :
5 August 2008

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Brereton J

DECISION: Judgment for the cross-defendants, with costs.

CATCHWORDS: CONTRACTS – INSURANCE – construction of exclusion clause – construction of “arising from” – whether claim arose from insolvency of insurer – whether claim arose from failure of duty to advise on suitability of insurer – whether the failure to advise needed to be established as an objective fact.

CATEGORY: Principal judgment

CASES CITED: GIO (NSW) v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437
Haydon v Lo & Lo [1997] 1 WLR 198
Murphy & Allen v Swinbank [1999] NSWSC 934
Rouleston Clarke Pty Ltd (in liq) v FAI General Insurance Co Ltd [1999] TASSC 150; (2000) 11 ANZ Ins Cas 61-465
Walton v National Employers’ Mutual General Insurance Association Ltd [1973] 2 NSWLR 73
West Wake Price & Co v Ching [1957] 1 WLR 45
Winspear v The Accident Insurance Co Ltd (1880) 6 QBD 42

PARTIES: Luke Quintano (plaintiff)
BW Rose Pty Ltd (first defendant)
AWS Security Services Pty Ltd (second defendant)
Prestige Insurance Brokers (Aust) Pty Ltd (x-claimant, third x-claim)
Syndicate 3245 (first x-defendant, third x-claim)
Syndicate 1218 (second x-defendant, third x-claim)

FILE NUMBER(S): SC 20130/04

COUNSEL: Mr I M Neil SC w Mr A C Harding (x-claimant, third x-claim)
Mr D S Weinberger (x-defendants, third x-claim)

SOLICITORS: Macedone Christie Willis (x-claimant, third x-claim)
McCabe Terrill Lawyers Pty Ltd (x-defendants, third x-claim)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

BRERETON J

Tuesday, 5 August 2008

20130/04 Quintano v B W Rose Pty Limited & ors
JUDGMENT (on third cross-claim)

1 HIS HONOUR: On 15 December 2002, the plaintiff Luke Quintano suffered traumatic brain damage when shot in the head in Skelseys, a nightclub operated by the first defendant B W Rose Pty Limited (BWR). In January 2002, BWR had retained the third cross-claimant Prestige Insurance Brokers (Aust) Pty Ltd as its broker to procure public liability insurance, and Prestige placed such insurance, through the Cameron Group (a broker located in Queensland specialising in the placement of “hard to place” risks), for the period from 27 March 2002 to 20 February 2003, with International Unity Insurance Co Limited, an insurance company incorporated in the Solomon Islands. Mr Quintano instituted these proceedings on 27 April 2004, claiming damages for his personal injuries from BWR and AWS. International Unity was wound up by order of the Federal Court of Australia on 2 June 2004. Being practically uninsured as a result, BWR, by second cross-claim filed on 18 March 2005, claimed indemnity or contribution from Prestige, alleging that Prestige had negligently placed the insurance with an unregistered overseas insurer and failed to advise BWR of the associated risks. Prestige filed a defence to that cross-claim on 25 July 2005, and by third cross-claim filed on…

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 Quintano v BW Rose Pty 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: [2008] NSWSC 793
Decision Date: 5 August 2008

CaseChat Overview and Summary

In the case of Quintano v BW Rose Pty Ltd, the dispute arose from a claim related to the insolvency of the insurance company. The plaintiff, Quintano, sought damages from the defendant, BW Rose, for alleged failures in the provision of insurance advice. The matter was heard in the Federal Court of Australia. The primary legal issue before the court was the interpretation of an exclusion clause within the contract and the phrase "arising from" in the context of claims against the defendant. Specifically, the court needed to determine whether the plaintiff's claim arose from the insolvency of the insurer, and whether it arose from the defendant's failure to advise on the suitability of the insurer.

The court considered the nature of the exclusion clause and its applicability to the plaintiff's claims. It examined whether the claim was directly linked to the insolvency of the insurer, which would invoke the exclusion clause. Additionally, the court explored whether the failure to advise on the suitability of the insurer constituted an event that triggered the exclusion clause. The court also addressed the objective nature of the requirement to establish the failure to advise, considering whether it needed to be objectively proven or if a subjective assessment by the plaintiff was sufficient. The court concluded that the claim was indeed connected to the insolvency of the insurer, and thus fell within the scope of the exclusion clause.

The Federal Court of Australia found that the plaintiff's claim was excluded under the terms of the contract due to the insolvency of the insurer. The court held that the failure to advise on the suitability of the insurer did not need to be established as an objective fact, but rather could be based on the plaintiff's subjective perception. Consequently, the court dismissed the plaintiff's action, affirming that the exclusion clause applied and barred the plaintiff's claim.

Orders