Elders Ltd v Swinbank [1999] FCA 798

FEDERAL COURT OF AUSTRALIA

Elders Ltd v Swinbank [1999] FCA 798 INSURANCE – liability insurance – coverage – whether insured entitled to indemnity – claim against insured settled – substance of claim – whether negligent act, error or omission within meaning of policy – relevance of pleadings in claim against insured – relevance of document recording terms of settlement in claim against insured. INSURANCE – liability insurance – claim for costs indemnity – claims against insured in separate proceedings – categorisation of claims against insured – part only of claims against insured relate to entitlement to indemnity under policy – whether insured entitled to indemnity for costs incurred – whether part only of claim for costs indemnity can succeed. Bankruptcy Act 1869 (UK) s 49 Bankruptcy Act 1966 (Cth) s 82(2) Insurance Contracts Act 1984 (Cth) s 41 Australian Breeders Cooperative Society Ltd v Jones (1997) 150 ALR 488 considered Barewa Oil and Mining NL (In Liq) v Isim Mineral Development Pty Ltd (1981) 38 ALR 288 considered Blomley v Ryan (1956) 99 CLR 362 considered Breen v Williams (1995-1996) 186 CLR 71 considered Broadlands Properties Ltd v Guardian Assurance Co Ltd (1984) 3 ANZInsCas 60-552 considered Chittick v Maxwell (1993) 118 ALR 728 considered Council of the Shire of Mudgee v Government Insurance Office of NSW (Supreme Court of New South Wales, Giles J, 1 July 1988, unreported) considered Commercial Bank of Australia v Amadio (1983) 151 CLR 447 considered Dwyer v Long (1992) 58 SASR 102 considered Emma Silver Mining Company v Grant (1881) 17 Ch D 122 considered Fuller v Beach Petroleum NL (1993) 43 FCR 60 considered Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 considered Hospital Products Ltd v United States Surgical Corporation (1984-1985) 156 CLR 41 considered Jenyns v Public Curator (Queensland) (1953) 90 CLR 113 considered Jones v Gordon [1876] 2 AC 616 considered Karenlee Nominees Pty Ltd v ACN 004 312 234 Ltd (1994) 8 ANZInsCas 61-236 considered Post Office v Norwich Union Fire Insurance Society Limited (1967) 2 QB 363 applied R v Holl (1881) 7 QBD 575 considered Re MacFadyen; ex parte The Vizianagaram Mining Co Ltd [1908] 2 KB 817 considered Rigby v Sun Alliance & London Insurance Ltd (1980) 1 LLR 359 considered Rohan Construction Ltd v Insurance Corporation of Ireland Plc [1988] 1 ILRM 373 applied Thorman v New Hampshire Insurance Co (UK) Ltd (1988) 1 LLR 7 considered Walton v National Employers' Mutual General Insurance Association Ltd (1973) 2 NSWLR 73 considered West Wake Price & Co v Ching [1957] 1 WLR 45 not followed in part