Decision confirms need to address clear criteria in pursuing direct recoveries against insurers

Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1610 On 21 November 2019, the Supreme Court of NSW dismissed an application brought by the fourth and fifth defendant seeking leave for joinder of an insurer in place of a deregistered legal practice under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). This decision confirms […]

Federal Court orders defendant to pay indemnity costs for misconduct

BAM Property Group Pty Ltd as trustee for BAM Property Trust v Imoda Group Holdings Pty Ltd (No.2) [2019] FCA 2072 On 9 December 2019, the Federal Court ordered the unsuccessful defendants in a shareholder oppression action to pay the plaintiffs’ costs of the entire proceedings on an indemnity basis. In this update, Andrew Moore […]

NSW Court of Appeal provides guidance on applications for the determination of separate questions

On 21 November 2019, the NSW Court of Appeal re-exercised the Court’s discretion to determine the limitation defence as a separate question in a dispute between a lender and a valuation firm. The decision, in which Wotton + Kearney successfully acted for the valuation firm, provides guidance on when a separate question determination is appropriate. […]

Extended powers for the REA Disciplinary Tribunal in NZ are now in force

On 29 October 2019, the Real Estate Agents Disciplinary Tribunal in New Zealand gained the jurisdiction to order a licensee to pay compensation of up to $100,000 where they are found guilty of unsatisfactory conduct. The threshold for unsatisfactory conduct is lower than the previous threshold of misconduct. On the same date the Disputes Tribunal […]

Parametrics: the next big thing?

Parametric insurance is becoming increasingly common as it give insurers a way to resolve risk-transfer concerns. The success of these products depends on the accuracy and objective nature of the parameters set and a deep understanding of the potential exposures. Nick Lux, Aisha Lala and Ben Hine consider the rising popularity of this product in […]

GL Update – key trends and emerging risks in general liability insurance

Welcome to Wotton + Kearney’s GL Update – a snapshot of the key trends and emerging risks in general liability insurance in Australia. In this edition we look at the impact of recent significant matters, including the Lacrosse cladding fire litigation conducted by our Melbourne team, the ongoing risk of concussion claims and prison authority […]

Lacrosse fire litigation: builder and consultants found liable for combustible cladding

On 28 February 2019, Australia’s first decision regarding the roles and responsibilities of builders and other building consultants regarding the use of combustible cladding was handed down. The Victorian Civil and Administrative Tribunal upheld the Owners Corporation and lot owners’ claims against the builder following a fire in November 2014 that involved combustible ACP cladding […]

NSW Court of Appeal resolves uncertainty about date of accrual of cause of action against a first party property insurer for limitation purposes

Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27 Wotton + Kearney acted for Allianz in a NSW Court of Appeal proceeding where judgment was issued yesterday clarifying – albeit by a 3-2 split decision – the issue of when a cause of action accrues against a first party insurer for limitation purposes. The […]

NZ High Court decision could test dishonesty exclusions

Mainzeal Property v. Yan & Ors This week, the New Zealand High Court awarded $36m in damages against directors of Mainzeal, once one of New Zealand’s leading property and construction companies, including former Prime Minister Dame Jenny Shipley. The damages are the highest awarded for reckless trading in New Zealand’s history. The case raises a […]

Insurance for WHS fines – will they soon be prohibited?

Are fines appropriate penalties to deter companies and directors from breaching WHS laws when they can be indemnified by their insurers? Should insurance policies that cover these monetary penalties be made illegal and void? At the moment, companies and directors are able to insure against the risk of fines for breaches of WHS laws, however […]