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Swiss Re International SE v Simpson

Swiss Re International SE v Simpson

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Case Copied 2 March 2018 74 min read

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Supreme Court

New South Wales

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Medium Neutral Citation: Swiss Re International SE v David Simpson [2018] NSWSC 233
Hearing dates: 31 October 2017, 1, 2, 6, 7, 8, 9, 13, 14, 15, 16, 20, 21, 22, 23, 24, 27, 28, 29, 30 November 2017, 4 December 2017
Decision date: 02 March 2018
Jurisdiction: Equity - Commercial List
Before: Hammerschlag J
Decision:
The proceedings are dismissed.

Catchwords: CONSUMER LAW – Competition and Consumer Act 2010 (Cth) – Schedule 2, ss 18(1) and 236(1) – Misleading or deceptive conduct – plaintiff insurers claimed that they were induced to issue surety performance bonds for a publicly listed company by misleading or deceptive conduct on the part of the defendant individual officers of the company – misleading or deceptive conduct claimed to be representations and non-disclosures – no claim of accessorial liability – HELD: no misleading or deceptive conduct on the part of the defendants established – the alleged misleading or deceptive conduct was not causative of the plaintiffs’ loss.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth)
Corporations Act 2001 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Cases Cited: Awad v Twin Creeks Properties Pty Limited [2012] NSWCA 200
Barton v Croner Trading Pty Ltd (1984) 3 FCR 95
BFSL 2007 Limited & Ors (in Liquidation) v Steigrad [2013] NZSC 156
C H Real Estate v Jainran Pty Ltd (2010) 14 BPR 27,361
Cackett v Keswick [1902] 2 Ch 456
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
Chappel v Hart (1998) 195 CLR 232
Chubb Insurance Co of Australia Ltd v Moore [2013] NSWCA 212
Commercial Union Insurance Co of Australia v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Downey & Anor v Carlson Hotels [2005] QCA 199
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fabcot v Port Macquarie-Hastings Council [2011] NSWCA 167
March v (E & M) Stramare Pty Ltd (1991) 171 CLR 506
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357
Rosenberg v Percival (2001) 205 CLR 434
Sidhu v Van Dyke (2014) 251 CLR 505
Travel Compensation Fund v Tambree (t/as R Tambree and Associates) and Others (2005) 224 CLR 627
Wallace v Kam (2013) 250 CLR 375
Wheeler Grace & Pierucci Pty Ltd v Wright (1989) ATPR 40-940
State of Western Australia v Bond Corporation Holdings Ltd (1991) ATPR 41-081
Texts Cited: J D Heydon, Trade Practices Law (Looseleaf Service)
Category: Principal judgment
Parties: Swiss Re International SE and QBE Insurance (Australia) Ltd - Plaintiffs
David Simpson - First Defendant
Donald Montgomery - Second Defendant
Andrew Bell - Third Defendant
Chubb Insurance Australia Limited - Fourth Defendant
Allianz Australia Insurance Limited - Fifth Defendant
Axis Specialty Europe SE (registered as a foreign company under the Corporations Act 2001) - Sixth Defendant
Representation:
Counsel:
R.A. Dick SC with S.A. Goodman SC, R.D. Glover and L. Rich - Plaintiffs
J. Lockhart SC with J. Hutton - First Defendant

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: [2018] NSWSC 233
Decision Date: 02 March 2018

CaseChat Overview and Summary

Swiss Re International SE, among others, sought to recover losses incurred from issuing surety performance bonds for a publicly listed company, alleging that the individual officers of the company engaged in misleading or deceptive conduct. The primary claim was that the defendants' actions induced the plaintiffs to issue the bonds by making misleading representations and failing to disclose material facts. The defendants denied any wrongdoing and argued that their conduct did not cause the plaintiffs' loss. The matter was heard in the Federal Court of Australia.

The court was tasked with determining whether the defendants' conduct was misleading or deceptive, and if so, whether it led to the plaintiffs issuing the bonds. Under the Competition and Consumer Act 2010, the plaintiffs needed to prove that the defendants engaged in conduct that was misleading or deceptive and that this conduct caused their loss. The defendants contended that there was no misleading or deceptive conduct and, even if there was, it did not cause the plaintiffs' loss. The court had to assess the evidence and arguments presented by both parties to make its determination.

In its judgment, the court found that the plaintiffs failed to establish that the defendants' conduct was misleading or deceptive. The court held that the alleged misleading or deceptive conduct was not causative of the plaintiffs' loss. The plaintiffs did not present sufficient evidence to prove that the defendants' conduct induced them to issue the bonds or that it was the cause of their loss. Consequently, the court dismissed the plaintiffs' claims.

The Federal Court of Australia dismissed the plaintiffs' claims and ordered the plaintiffs to pay the defendants' costs.

Orders