Livingstone v CBL Corporation Limited (in liquidation)

[2021] NZHC 755

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2727

[2021] NZHC 755

BETWEEN

BASIL IAN LIVINGSTONE

Plaintiff

AND

CBL CORPORATION LIMITED (IN LIQUIDATION)

First Defendant

SIR JOHN WELLS
First Third Party

PETER ALAN HARRIS
Second Third Party

Cont …

Hearing:

22 February 2021

(further submissions received 19 March and 26 March 2021)

Appearances:

P G Skelton QC and S C I Jeffs for Plaintiff

J K Goodall and A Challis for CBL Corporation Ltd
K Francis and S McNae for First, Fourth, Fifth and Sixth Third Parties

D M Salmon and S Humphrey for Second Third Party C Meechan QC for Third Third Party

Judgment:

9 April 2021

JUDGMENT OF LANG J

[on application by defendant for order striking out fourth cause of action and application by plaintiffs seeking particular discovery]

This judgment was delivered by me on [           ] at [       am/pm], pursuant to Rule

11.5 of the High Court Rules.

Registrar/Deputy Registrar

LIVINGSTONE v CBL CORPORATION LTD [2021] NZHC 755 [9 April 2021]

Date……………

ALISTAIR LEIGHTON HUTCHISON
Third Third Party

ANTHONY CHARLES RUSSELL HANNON

Fourth Third Party

IAN KELVIN MARSH
Fifth Third Party

NORMAN GERALD PAUL DONALDSON

Sixth Third Party

[1]    This proceeding follows the collapse and liquidation of CBL Corporation Limited (CBL) and associated companies. CBL was placed in liquidation by this Court on 13 May 2019.

[2]    The plaintiff, Mr Livingstone, has filed the present proceeding as a representative proceeding under r 4.24 of the High Court Rules 2016. In the first three causes of action he alleges CBL breached its obligations under both the Financial Markets Conduct Act 2013 and the Fair Trading Act 1986. In the fourth cause of action Mr Livingstone alleges CBL held insurance policies indemnifying CBL and its directors against claims of the type pleaded in the first three causes of action. He seeks a declaration that, by virtue of s 9 of the Law Reform Act 1936 (the LRA), any monies payable to CBL under those policies are now subject to a statutory charge in his favour.

[3]    CBL seeks contribution from the third parties if Mr Livingstone succeeds against it in the first three causes of action. The third parties were CBL’s directors during the period in which the events giving rise to those causes of action occurred.

[4]    Two interlocutory applications require determination. The first is an application by CBL for an order striking out the fourth cause of action on the basis that it is not tenable in law. The second is an application by Mr Livingstone for an order requiring CBL to discover any insurance policies to which the proceeding relates. It is common ground that Mr Livingstone’s application will only need to be determined if CBL’s application to strike out the fourth cause of action fails.

Relevant principles

[5]    CBL advances the application in reliance on r 15.1 of the High Court Rules 2016.

[6]    The principles applicable in a strike-out application are well established and were confirmed by the Court of Appeal in Attorney-General v Prince & Gardner1 and

1      Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA).

re-confirmed by the Supreme Court in Couch v Attorney-General.2 In Prince the Court of Appeal observed:3

A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed; the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction.

[7]    For the purposes of the present application, further matters should be added. Strike-out applications are usually based on the pleadings alone. However, it is permissible to refer to affidavit evidence where the evidence is undisputed and is not inconsistent with the pleadings.4 As will become evident, Mr Livingstone does not concede the accuracy of some of the evidence adduced by CBL in support of the application to strike out the fourth cause of action.

[8]    Finally, where a defect in the pleadings can be cured by an amendment that the plaintiff is willing to make, the Court will not generally strike the proceeding out. Rather, it will permit the plaintiff to make the amendment provided the cause of action is still within time.5

The insurance policies

[9]    When Mr Livingstone issued the present proceeding he alleged that CBL held insurance policies with a named insurer. When CBL applied to strike out the fourth cause of action it provided material confirming that this aspect of the statement of claim was in error. Following the hearing, and at my direction, Mr Livingstone filed and served an amended statement of claim reflecting the material provided by CBL in support of its application for strike-out.

2      Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

3      Attorney-General v Prince & Gardner, above n 1, at 267.

4      Attorney-General v McVeagh [1995] 1 NZLR 558 at 566

5      Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 at 324.

[10]   Mr Livingstone now alleges CBL entered into two contracts of insurance under which it was indemnified against liability to pay damages or compensation in relation to claims against the company and/or its officers. The policies are:

i.A Public Offering of Securities Insurance policy (POSI) for the period between 15 September 2015 and 15 September 2022.

ii.A Directors and Officers Liability policy (2018 D&O policy) for the period between 31 December 2017 and 31 December 2018.

[11]   Mr Mark Dennett, a partner in an Auckland and Sydney-based law firm that acts for the underwriters of the two policies, provided the affidavit in support of the defendant’s application that led to Mr Livingstone amending his pleading. After setting out the particulars of the policies Mr Dennett provided the following information about them:

(2)CBLC’s directors and officers are insured persons under the policies.

(3)The named Underwriters in both policies are Dual Corporate Risks Limited (DCRL) and Liberty Specialty Markets (Liberty).

(4)DCRL is a company registered in England and Wales. It operates as a managing general agent. The head office of DCRL is Bankside House, 107 Leadenhall Street, London, EC3M7HA.

(5)Liberty operates on behalf of Liberty 4472, which is a Lloyd’s syndicate with its head office at One Lime Street, London, EC3M7HA.

(6)For the D & O policy:

(b)      DCRL underwrote 51.05% of the slip for and on behalf of the following Lloyd’s syndicates:

(i)      Fl Lloyds (65%). (ii)   LIB 4473 (15%).

(iii)Everest 2786 (10%).

(iv)Hardy 382 (10%).

(c)      Liberty underwrote 48.95% on behalf of Liberty 4472.

(d)      Any interpretation of the policy or issue relating to the construction, validity or operation of the policy must be determined by the laws of New Zealand.

(7)For the POSI policy:

(a)      DCRL underwrote 48.4414% for and on behalf of:

(i)Allianz Global & Corporate Specialty SE (50%).

(ii)Lloyd’s Syndicate 4473 LIB (50%).

(b)      DCRL also underwrote 2.0782% of the slip for Lloyd’s Syndicate 3210 MIT.

(c)      Liberty underwrote 49.4904% on behalf of Liberty 4472.

(d)      The choice of law is that of England and Wales.

(8)The liability of each insurer and each member of each Lloyd’s syndicate identified above for both policies is several, not joint.

(9)The business address of each syndicate member under both policies is at Lloyd’s, One Lime Street, London, EC3M 7HA. None of the syndicate members currently reside or have a fixed place of business in New Zealand, and nor do they carry on business in New Zealand, either directly or through any agent (including for the insurance periods stated at paragraph 7(1) above).

(10)Neither of the policies provides for separate limits of liability for CBLC or other insured persons under the policies. The limits of liability are combined limits for all insureds. The limits of liability are inclusive of all costs, i.e. they are defence costs inclusive.

(11)Any payment made under either the D & O or POSI policies will be made from London.

…

[12]   In response, Mr Livingstone has filed an affidavit by Mr Paul Kim, a solicitor employed by the plaintiffs’ solicitors. This contains the following information:

DCRL

5DCRL is the principal legal entity in the United Kingdom for the DUAL Group. On its website ( the DUAL Group describes itself as follows:

DUAL is the world’s largest international underwriting agency and Lloyd’s of London’s largest international coverholder. Some of the world’s largest and best-rated insurance and reinsurance companies back DUAL.

We are driven to create and deliver the right products for the right people across the globe; with underwriting offices around the world by connecting capacity providers with new markets, intermediaries with capacity providers and brokers with their clients to meet the needs of the end customer.

Today we are the world’s largest international MGA with over US$1 billion of GWP, based in 16 countries and providing over 50 products.

16 countries / 700 people / US$1.1 billion GWP /

DUAL is part of Howden Group Holdings, an international insurance group with employee ownership at its heart. Howden Group Holdings was founded in 1994 and operates in 40 territories and employs around 8,5000 people.

Our global network enables us to provide access to international expertise, knowledge and developments so we can constantly improve the products and services we offer. We work hard to understand the needs of your business to ensure you receive a consistently outstanding service from DUAL that is both tailored to your requirements and superior in its delivery.

DUAL International Limited is the overarching legal entity for the DUAL Group. In the UK, our main legal entity is DUAL Corporate Risks Limited.

6Another part of its website ( com/our locations) includes a map showing the DUAL Group’s global locations marked by red dots. There is a red dot for New Zealand, which appears to be over Auckland.

Also on that part of its website, under the headings “Our Locations”, there is the following address:

New Zealand: Auckland Level 6, 5 High Street Auckland

1010 New Zealand

Tel: [phone]

Annexed …

8The DUAL Group also has a website for New Zealand ( The website identifies four locations under “Contact”: two in Auckland, one in Christchurch, and one in Wellington.

Annexed …

9There is a New Zealand company called DUAL New Zealand Limited that was incorporated on 23 December 2010. Its ultimate holding company is Howden Group Holdings Limited, an overseas company registered in the United Kingdom.

Annexed …

10I have found an article from March 2011 announcing that Dual International had opened an office in Auckland. The article noted Dual New Zealand would “write liability and financial products on behalf of Lloyd’s syndicates”.

Annexed …

11I have also found online:

(a)A General Conditions and Exclusions document for DUAL New Zealand.

Annexed …

(b)A Directors and Officers Liability document for DUAL New Zealand.

Annexed …

(c)A Complaints and Dispute Resolution document for DUAL New Zealand. Stage 3 refers to the external dispute resolution process, which involves reference to Lloyd’s General Representative in New Zealand c/o Hazelton Law.

Annexed …

12Hazelton Law’s website ( identifies Scott Galloway as Lloyd’s General Representative in New Zealand and its legal adviser for over 25 years. Hazelton Law is a Wellington firm. Mr Galloway’s profile on its website also describes him as Lloyd’s represent on the Insurance Council of New Zealand Inc.

Annexed …

Liberty

13Liberty appears to be one of the trading names for various members of the Liberty Mutual Insurance Group.

14On part of its website ( binding-authorities-business), Liberty says:

Liberty Specialty Markets has an established binder portfolio with experienced underwriting teams across many products. We have a wealth of experience in writing and supporting coverholders, both through Lloyd’s or company capacity. We pride ourselves on providing first class service levels, delivering market leading products and solutions, and responding to claims in a timely fashion.

Our team works across the US, Canada, Australia, New Zealand, the UK, Europe and the Far East. We work closely with Liberty’s Delegated Underwriting Authority team to ensure all coverholders are supported whilst going through our internal control procedures, reporting controls and our renewal/on-boarding processes, and external reporting requirements such as Lloyds.

Annexed …

15I have not been able to find out any other information online about Liberty, including as to its role in New Zealand

The issue

[13]Section 9 of the LRA relevantly provides:

9Amount of liability to be charge on insurance money payable against that liability

(1)If any person (hereinafter in this Part of this Act referred to as the insured) has, whether before or after the passing of this Act, entered into a contract of insurance by which he is indemnified against liability to pay any damages or compensation, the amount of his liability shall, on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance money that is or may become payable in respect of that liability.

(2)If, on the happening of the event giving rise to any claim for damages or compensation as aforesaid, the insured has died insolvent or is bankrupt or, in the case of a corporation, is being wound up, or if any subsequent bankruptcy or winding up of the insured is deemed to have commenced not later than the happening of that event, the provisions of the last preceding subsection shall apply notwithstanding the insolvency, bankruptcy, or winding up of the insured.

(3)       …

(4) Every such charge as aforesaid shall  be  enforceable by  way of an  action against the insurer in the same way and in the same Court as if the action were an action to recover damages or compensation from the insured; and in respect of any such action and of the judgment given therein the parties shall, to the extent of the charge, have the same rights and liabilities, and the Court shall have the same powers, as if the action were against the insured:

Provided that, except where the provisions of subsection (2) of this section apply, no such action shall be commenced in any Court except with the leave of that Court.

…

[14]   Section 9 was enacted to overcome the unfairness that ensued when insurance proceeds were paid to the general pool of creditors of an insolvent insured rather than to the party who had suffered the loss to which the policy responded.6 The section

6      Body Corporate 326421 v Auckland Council [2013] NZHC 753 at [12].

creates a statutory charge in favour of third party claimants on monies that become payable by an insurer to an insured in relation to the liability of the insured to the claimants. The charge is created on the happening of the event giving rise to liability on the part of the insured even though such liability has not at that point been established.7

[15]   At the heart of the strike-out application is CBL’s argument that its insurers are based overseas and not in New Zealand. Any payment made under the policies will also be paid from overseas. This means any debt arising from the policies will be situated overseas. CBL contends s 9 of the LRA cannot apply to any monies to be paid out under the policies because the section does not have extraterritorial effect.

The law

[16]   The leading authority in the present context is the judgment of the Supreme Court in Ludgater Holdings Ltd v Gerling Australia Insurance Co Pty Ltd.8 The principles confirmed in that case have been consistently been applied by the courts in New Zealand since it was delivered.9 In Bridgecorp Ltd (in rec and in liq) v Certain Lloyd’s Underwriters the Court of Appeal summarised the principles to be derived from Ludgater as follows:10

[7] It is common ground between counsel that  Ludgater  stands  as  authority for three foundation principles: (1) s 9 does not have extraterritorial application; (2) s 9 will only apply if the New Zealand courts have subject matter jurisdiction over any debt payable by underwriters under a policy; and

(3) subject matter jurisdiction will not be conferred if the debt is situated or located outside New Zealand (called the situs or situation of the debt).

[7]The Court of Appeal went on to observe:

[14]      In Ludgater the Supreme Court affirmed this settled principle against extraterritoriality when applying the presumption that unless a contrary intention emerges New Zealand statutory provisions do not extend to subjects

7      BFSL 2007 Ltd v Steigrad [2013] NZSC 156, [2014] 1 NZLR 304 at [34].

8      Ludgater Holdings Ltd v Gerling Australia Insurance Co Pty Ltd [2010] NZSC 49, [2010] 3 NZLR 713.

9      See Bridgecorp Ltd (in rec and in liq) v Certain Lloyd’s Underwriters Under Policy No B0701LS05809 [2014] NZCA 571, [2015] 2 NZLR 285 at [14]; Body Corporate 326421 v Auckland Council [2013] NZHC 753; McCullagh & Lawrence v Underwriters Severally [2015] NZHC 1384.

10     Bridgecorp Ltd (in rec and in liq) v Certain Lloyd’s Underwriters, above n 9.

governed by foreign law. As the Court noted in recognition of a foreign state's sovereignty in this situation:

“[25] … a court will not as a matter of principle exercise its power, statutory or otherwise, in relation to property situated in another country in a manner which would compel someone to do or refrain from doing something in relation to that property if its order may create a risk of conflict with an actual or likely determination of a court in that other country. In particular, it will not, and should not, make an order which cannot be given the effect in relation to the subject property which Parliament has stipulated shall be a necessary consequence of the order. … ”

(Emphasis added.)

[15]The Court further observed:

“[26] Accordingly, if a New Zealand plaintiff wishes to have the benefit of an order that something shall be done with property whose situs is in another jurisdiction it will ordinarily have to apply directly to a court in that jurisdiction. If a New Zealand court did make an order which required someone to do or refrain from doing something with property whose situs was in a foreign jurisdiction, the foreign court where the New Zealand judgment was sought to be registered would appear to have every right to decline to accept and enforce it. A New Zealand court is likely to react in a similar way if the situation were in reverse. In fact, under the Reciprocal Enforcement of Judgments Act 1934, a foreign judgment in rem relating to movable property may be registered only if that property was situated in the country of the court which gave the original judgment at the time of the proceeding in that country. … ”

[17]            The Court of Appeal also observed that, once it is accepted that s 9 does not have extraterritorial effect, any enquiry must be limited to determining the situation of the debt. CBL contends that the debt, namely any amount payable under the policies, is situated overseas because both policies are underwritten and administered by entities having their places of business in London.

Decision

[18]            If Mr Dennett’s evidence is correct, and there is no reason at this stage to doubt it, CBL’s argument appears to be unassailable. Both policies are underwritten and administered by entities having their places of business overseas. The syndicates on

whose behalf the policies are underwritten also have their places of business outside New Zealand. None of the syndicates has any business presence in New Zealand. The payment of any insurance proceeds will therefore be made from overseas even if it is paid to a New Zealand bank account. It follows that the location, or situs, of any debt arising out of the policies will also be overseas and not in New Zealand.

[19]            The difficulty for CBL in the present context is that the amended statement of claim contains the following allegations:

155.The claims made in this proceeding, as set out at the First, Second and Third Causes of Action above, are claims for which the Company is indemnified against liability under the Policies.

156.The POSI insurers were resident in multiple places including in New Zealand when they underwrote the POSI policy, because they were carrying on business in New Zealand either directly or via an agent.

(a)The POSI insurers were writing business for New Zealand insured, including the Company;

(b)The POSI insurers were underwriting New Zealand risks, including those covered in the POSI policy; and

(c)Further particulars will be provided following discovery.

157.Under the POSI policy, the POSI insurers were obliged to make payment to the Company in New Zealand under the terms of the POSI policy (express or implied) or, alternatively, the POSI insurers would have made payment to the Company in New Zealand in the ordinary course of business.

158.The 2018 D&O insurers were resident in multiple palces including in New Zealand when they underwrote the 2018 D&O policy, because they were carrying on business in New Zealand either directly or via an agent.

Particulars

(a)The 2018 D&O insurers were writing business for New Zealand insured, including the Company;

(b)The 2018 D&O insurers were underwriting New Zealand risks, including those covered in the 2018 D&O policy; and

(c)Further particulars will be provided following discovery.

159.Under the 2018 D&O policy, the 2018 D&O insurers were obliged to make payment to the Company in New Zealand under the terms of the D&O policy (express or implied) or, alternatively, the 2018

D&O insurers would have made payment to the Company in New Zealand in the ordinary course of business.

…

[20]            Two factors persuade me it is not possible to make a factual finding at this stage that the location of the debt is outside New Zealand. First, Mr Livingstone does not concede that Mr Dennett’s evidence is necessarily correct. More importantly, his evidence and the submission that the underwriters are resident outside New Zealand both contradict express pleadings contained in the current version of the statement of claim. The Court is obliged in the present context to proceed on the basis that the allegations made in the statement of claim are correct and cannot receive evidence to the contrary unless it is indisputable. Mr Dennett’s evidence does not fall into that category. Furthermore, Mr Kim’s evidence is to the effect that DCRL, or DUAL, may have a place or places of business in New Zealand.

[21]            Mr Dennett’s evidence must also be regarded as hearsay because he is not an officer or employee of either underwriter. Rather, he is a partner in the firm of solicitors that usually acts for the underwriters in Australia and New Zealand. Although Mr Dennett has undoubtedly been authorised to give evidence on his clients’ behalf the accuracy of his evidence depends on the accuracy of the information he has been given by them. Furthermore, Mr Dennett does not state that the evidence he has given about his clients’ places of business is a matter of public record.

[22]            I am also satisfied, however, that Mr Livingstone should not be permitted to proceed with the fourth cause of action unless CBL’s underwriters are afforded the opportunity to be heard. As I have already recorded, Mr Livingstone seeks a declaration that a charge exists under s 9 of the LRA over any monies payable under CBL’s insurance policies. Mr Skelton made several comments during the hearing that suggested Mr Livingstone views the fourth cause of action as a convenient means by which he can establish an entitlement to those monies. That is plainly not the case. As s 9(4) makes clear, a claimant who wishes to enforce a charge under s 9 must obtain leave to file an action against the insurer in the same way as it could have filed an action against the insured.

[23]            Most, if not all, of the cases in this area of the law arise out of applications by a claimant for leave to bring a proceeding under s 9 against the insurer of an insolvent insured. Ludgater and Bridgecorp are examples of this. Insurers who are resident overseas commonly respond by filing an appearance under protest to jurisdiction.11 This will lead to one of two results. First, the party who files the appearance may apply to dismiss the proceeding on the ground that the Court has no jurisdiction to determine it.12 Alternatively, the claimant may seek an order setting aside the appearance.13 In either case, however, the evidence given by both parties enables the Court to determine whether it has jurisdiction to make orders under s 9. The ability of the Court to make a final determination as to jurisdiction in that context is much wider than is the case in a strike-out application, where the Court is bound by the pleadings and is precluded from determining disputed issues of fact.

[24]            I do not know why Mr Livingstone chose to bypass CBL’s underwriters and to seek a declaration in their absence as to the existence of a charge under s 9. It is probably because he was not aware of CBL’s insurance arrangements when he commenced this proceeding. This flows from the fact that the original version of the statement of claim referred to an insurance company with whom it transpires CBL held no policies.

[25]               In order to obtain the declaration Mr Livingstone seeks he will need to satisfy the Court that the insurance policies respond to any liability CBL (and the third parties) may be found to have to him. The current version of the statement of claim recognises this because it contains an allegation that the plaintiffs’ claims in this proceeding are claims for which CBL is indemnified under the policies.14 The underwriters have an obvious interest in that issue. They may also be aware of factors that preclude or affect cover under the policies held by CBL. These may not be known to CBL and the third parties or, for reasons that are obvious, they may not wish to raise them if the underwriters are not a party to the proceeding.

11     High Court Rules 2016, r 5.49(1).

12     Rule 5.49(3).

13     Rule 5.49(5)

14 In paragraph 155, set out above at [19].

[26]            It follows that I consider CBL’s insurer, in this case the underwriters, should have been named as parties to the proceeding. Alternatively, their presence before the Court is required to enable it to adjudicate on and settle all questions raised in the proceeding. Joinder of the underwriters as parties to the proceeding is therefore appropriate under both r 4.56(1)(b)(i) and (ii) of the High Court Rules 2016. Mr Livingstone may also wish to add a new cause of action against the underwriters in which he seeks leave to bring a proceeding against them under s 9(4) of the LRA. Whichever method he adopts, however, the underwriters will have an opportunity to respond directly as to whether the Court has jurisdiction to make the declaration Mr Livingstone seeks and, if so, whether the declaration should be made.

[27]            Mr Livingstone is now in a better position in some respects because of the information the underwriters have disclosed through Mr Dennett’s affidavit. He is also now on notice, however, that the underwriters are likely to contest the jurisdiction of the Court to make the declaration he seeks given their asserted places of residence. It will be for Mr Livingstone to make such enquiries as he considers appropriate to assess the accuracy of Mr Dennett’s evidence and the risks associated with proceeding in either of the ways to which I have referred.

[28]            At this stage I therefore refrain from striking out the fourth cause of action. I direct, however, that Mr Livingstone must now either apply to join the underwriters as parties to the proceeding or apply for leave to commence an action against them under s 9(4) of the LRA. If he has not taken either of those steps by 11 June 2021 he must be taken to accept the correctness of the evidence given by Mr Dennett. In that event the fourth cause of action will be struck out with immediate effect.

The application for discovery of the insurance policies

[29]            The application for discovery of the insurance policies is plainly premature given the conclusion I have reached on the strike-out application. It may be considered again once it is known what course of action the plaintiffs elect to take in relation to the underwriters.

Next event

[30]            The Registrar is to arrange a telephone conference before me on Thursday 17 June 2021 at 9 am. The Court will then give such further directions as may be appropriate having regard to any steps the plaintiffs have taken as a consequence of this judgment.

Costs

[31]            I reserve the issue of costs at this stage. Costs can be considered at the telephone conference on 17 June 2021.

Lang J

Solicitors:

Glaister Ennor, Auckland McElroys, Auckland

Lindsay, Auckland

Lee Salmon Long, Auckland Meredith Connell, Wellington Counsel:

P Skelton QC, Auckland

J K Goodall, Barrister, Auckland D M Salmon, Barrister, Auckland C Meechan QC, Auckland