Sienkiewicz (As Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd

In the case of Sienkiewicz (As Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd, the primary issue before the court was whether the applicants, Sienkiewicz, had the right to amend their interlocutory application and join the Insurers as parties to the proceeding. The applicants sought declarations and relief from the Salisbury Group and the Insurers in relation to indemnity under a policy. The applicants argued that if they could establish a right to indemnity, they would gain some benefit from the declarations being made.

The legal issues before the court were whether the word “encompassing” in the policy's endorsement limited the scope of the policy in a way that would exclude the applicants' claim and whether there was an existing controversy between the Insurers and the insured on the question of indemnity that would warrant the refusal of joinder. The court also considered the discretionary factors relevant to joinder, such as the utility of the declaration sought against the insurer and the overlap of factual issues.

The court found that the meaning of the word “encompassing” in the policy's endorsement was not clear enough to warrant the dismissal of the applicants' joinder application. The court held that it was arguable that the investment product was approved by being on a list at the time the advice was given. The court also found that there were factual issues capable of being disputed and in dispute. While the Insurers' position was accepted by other parties, the court held that this did not mean that joinder should be refused. The court held that the discretionary considerations relevant to joinder did not warrant the refusal of joinder.

The court made orders giving effect to its conclusions in paragraphs [50], [55] and [56] above. The applicants were granted leave to amend their interlocutory application and join the Insurers as parties to the proceeding. The applicants were also ordered to pay the Insurers' costs of the application.