Zhang v ROC Services (NSW) Pty Ltd

The proceedings involved an appeal by Mr Zhang against ROC Services (NSW) Pty Ltd and an application for leave to appeal by NTI. The dispute concerned the construction of an insurance contract, specifically an exclusion clause, and its application to a claim made by Mr Zhang. The appeals were heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether Mr Zhang had a right to appeal an interlocutory decision, the consequences of one defendant seeking leave to appeal while another did not, and whether the other defendant was estopped from pursuing its appeal. Furthermore, the Court had to consider the construction of a complex exclusion clause within a contract of insurance, including the relevance of legislative context and the application of interpretive principles such as reading the contract as a whole and the *contra proferentem* maxim. The Court also addressed whether an appeal as of right lay from adverse costs orders, particularly in relation to a failure to obtain a third-party costs order, and whether the conduct of a former director could be attributed to the insured for the purposes of the exclusion clause.

In relation to the construction of the insurance contract, the Court emphasised the importance of considering the text, context, and purpose of the clause, paying close attention to grammatical structure and punctuation. It held that the *contra proferentem* rule was a last resort. The Court dismissed Mr Zhang's appeal against ROC, ordering him to pay ROC's costs. Leave to appeal was granted to NTI in respect of specific grounds, with the appeal ultimately being dismissed, and NTI was ordered to pay the costs of Mr Zhang and Mr Tabuso. No order was made as to the costs of Mr Popovic and Calabro, who were to bear their own costs.