AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2005] FCAFC 185

FEDERAL COURT OF AUSTRALIA

AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2005] FCAFC 185 CORPORATIONS LAW – Insurance – insurance contracts covering civil liability incurred in business of finance, investment and insurance advice, licensed security dealer and mortgage originator – circumstances arose where there was the possibility of liability arising – insured provided proposal for dealing with claims – insurer agreed in principle – insured repeatedly requested confirmation of indemnity under contracts from insurer – insurer instructed insured to act as a prudent uninsured – whether insurer estopped from denying indemnity – whether insurer failed to act with the utmost good faith – whether s 819(4) of the Australian Securities and Investments Commission Act is a defence to claims against the insured – whether insured's legal and investigation costs are recoverable as damages for the insurer's breach of the insurance contracts Australian Securities and Investments Commission Act 1989 (Cth), ss 784, 817, 818, 819, Corporations Law ss 784, 807, 817, 818, 819, 826, 827 Fair Trading Act 1999 (Vic) Insurance Contracts Act 1984 (Cth), s13 Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452 at 506 referred to Baygol Pty Ltd v Foamex Polystyrene Pty Ltd [2005] FCA 1089 cited Broadlands Properties Ltd v Guardian Assurance Co Ltd (1984) 3 ANZ Insurance Cases 60-552 cited CA & MEC McInally Nominees Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2001)188 ALR 439; (2001) 166 FLR 271 referred to CIC Insurance v Barwon Region Water Authority (1998) 147 FLR 353 discussed Con‑Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226, 244 referred to Distillers Co (Bio-Chemicals) (Aust) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1 cited Edwards v Insurance Office of Australia Ltd (1933) 34 SR(NSW) 88 cited Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175, 185 referred to Financial Wisdom Ltd v Newman [2005] VSCA 110 discussed Gutteridge v Commonwealth of Australia (unreported, Supreme Court of Queensland, Ambrose J, 25 June 1993) referred to Kelly v New Zealand Insurance Co Ltd (1996) 130 FLR 97 referred to Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622 referred to MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 referred to Moss v Sun Alliance Australia Ltd (1990) 6 ANZ Insurance Cases 60-967 referred to Newman v Financial Wisdom Ltd [2004] VSC 216 discussed Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603 referred to Vermeulen v SIMU Mutual Insurance Association (1987) 4 ANZ Insurance Cases 60-812 discussed Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 referred to AMP FINANCIAL PLANNING PTY LTD v CGU INSURANCE LIMITED VID 1422 OF 2004 MOORE, EMMETT & GYLES JJ