auckland Office P: + 64 9 280 0528

Mathew Francis

Partner


About Mathew Francis

Mathew is a Partner in Wotton + Kearney’s Auckland office practicing exclusively in insurance and dispute resolution for over 15 years and has appeared at all levels of the New Zealand courts.  He specialises in professional negligence and discipline (accountants, architects, brokers, engineers, directors, solicitors, surveyors and valuers) and general liability matters, including construction, product liability and defamation.

Mathew has significant experience in complex indemnity disputes and is familiar with excess layer, facultative and captive arrangements and London Market practices.  He acted in a number of complex multi-jurisdictional directors and officers and financial institution (liability and bond) claims arising out of the 2008 GFC.

Mathew also advises ISR (plant and heavy auto) insurers and undertakes subrogated recoveries.

Areas of Expertise

  • Professional Indemnity
  • Product Liability
  • Defamation
  • D&O
  • Financial Institutions
  • Fidelity & Crime
  • Industrial Special Risk
  • Subrogation & Recoveries

Industry Representation

  • Agriculture
  • Construction & Infrastructure
  • Financial Institutions & Services
  • Professionals & Business Services
  • Property & Real Estate
  • Manufacturing & Retail

Mathew Francis's Experience

  • Successfully conducting the defence of an indemnity claim against insurers in High Court proceedings under a Political Risk policy.  This included a successful appeal to the Supreme Court on a procedural issue (whether the summary judgment procedure could be used to avoid an arbitration agreement), Zurich v Cognition Education [2015] 1 NZLR 383 (SC) – now the leading authority on this issue and brought New Zealand into line with the UNCITRAL Model Law.
  • Regularly advises insurers on implications of s9 Law Reform Act 1936 (the statutory charge).  Successfully opposed s9 joinder applications brought against overseas insurers on jurisdictional grounds, see for e.g. Bridgecorp Ltd (in rec and liq) v Certain Lloyd’s Underwriters [2015] 2 NZLR 285 (CA) where the underlying broker’s negligence claim was then out of time and the policy subsequently avoided for fraud and misrepresentation.
  • Defended numerous architect and engineer claims including for faulty draughtsmanship, leaky buildings, subsidence issues, failures with building services and failed Canterbury Earthquake repairs.  Conducted the successful defence of a $25 million claim under professional indemnity policy for a leaky commercial building, Body Corporate 326421 & Ors v Auckland Council & Ors (the Nautilus) [2015] NZHC 862.
  • Routinely acts for brokers, financial advisers, solicitors, valuers and their insurers in civil claims and disciplinary matters.  This has included defending accountants and financial advisors in respect of negligent tax advice and flawed trust structures (in the UK); brokers in respect of management of claims and asbestos cover; solicitors in respect of conveyancing errors, GST advice, breach of fiducuary duties, and trustee liability claims; valuers in respect of under/over valuations, mis-descriptions of property and breach of confidence.
  • Has acted in product liability cases including in respect of failed marine fittings to a yacht, MAF labels on export products, horticulture products and advice and the successful defence of High Court proceedings regarding fitness for purpose of fuel provided to historic race cars – Mortimer and Mortimer & Ors v Motorsport Logistics Ltd & Ors [2012] NZHC 3180.
  • Has successfully conducted various High Court defamation proceedings including overturning an interim injunction obtained ex-parte following an urgent substantive hearing – Chen v Carter [2013] NZHC 869.
  • Has successfully conducted various subrogated recoveries in respect of property, aviation, motor and fidelity losses.
  • Significant experience in FIPI claims having specialised in this area in London during the GFC.  Experience includes indemnity advice following a £1.2 billion notification for claims arising out of the Enron collapse; indemnity advice on claims in multiple jurisdictions against an investment bank arising out of its involvement in the Madoff fraud; monitoring counsel on claims in the United States (securities litigation and class actions), Canada, Italy, Scandinavia (financial regulatory investigations and D&O liability) and Channel Islands.
  • Advised on first party financial lines policies including: claims under Bankers Blanket Bond policies for the US$10 billion fraud by an employee of the Middle East based Algosaibi group; indemnity and recovery advice to insurers on numerous fidelity policies following theft by employees; acted for London Market insurers defending claims brought in Italy under Cash in Transit policies both for theft in transit and for discrepancies in control room accounting.
  • Advised on indemnity issues including the application of average, double insurance, leased / hired plant and resulting overlap between first party and liability cover, unlicensed drivers, reasonable care conditions, consequential loss and business interruption claims,  consequences of undisclosed financial interests in vehicles and application of ss9 and 11 Insurance Law Reform Act 1977.
  • Advised on liability (defence and subrogated recoveries) including the liability of passengers for acts of their drivers, under the Carriage of Goods Act 1979, contributory negligence, s9 Law Reform Act 1936 claims, salvage rights and recovery where a landowner restricts access to property.
  • Acted in one of the leading cases on personal injury (exemplary damages) claims in New Zealand.  The claim alleged negligence warranting exemplary damages by the pilot instructor following a crash which crippled his student, Wallace v McDermott [2005] 3 NZLR 661 (Court of Appeal).

Professional Affiliations

  • Member of the New Zealand Insurance Law Association

Publications