Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Permanent Custodians Limited v ARMA Pty Limited [2006] FCA 640
INSURANCE – lender advanced moneys secured by mortgage of realty – lender asserted reliance in so doing on valuation of real estate valuer – borrower defaulted under mortgage – likely shortfall in loan moneys outstanding inclusive of interest after exercise of power of sale by lender – lender sought recovery of shortfall from valuer on basis of misleading and deceptive conduct – valuer held professional indemnity insurance from Australian underwriting agent for unnamed non-resident representative or nominee for individual unnamed underwriters – lender sought leave to add Australian underwriting agent and non-resident – liability to indemnity rejected upon the basis of controversial interpretation and operation of policies of indemnity in favour of valuer in relation to each of two successive years of cover – issue as to applicable annual insurance cover for two successive years – difference in wording of cover for each year – whether notice to litigate applicable to one year of indemnity or the next following year of indemnity – issues arising as to construction of successive yearly policies reasonably arguable – leave granted to lender to join in proceedings as respondents additional to valuer the Australian insurance agent and the overseas representative for the unidentified underwriters
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 6 Trade Practices Act 1975 (Cth) ss 52 and 53A Insurance Contracts Act 1984 (Cth) ss 14, 33 and 37
Andjelkovic v AFG Insurances Ltd (1980) 47 FLR 348 applied Fishwives Pty Ltd v FAI General Insurance Co Ltd & Ors (2002) 12 ANZ Insurance Cases 61-515 applied FAI General Insurance Co Limited v McSweeney ((1999) 10 ANZ Ins Cas 61-443 applied Darlington Futures Limited v Delco Australia Proprietary Limited (1986) 161 CLR 500 referred to Permanent Trustee Australia Limited v FAI Insurance Company Limited (1988) 153 ALR 529 cited Pech v Tilgals (1994)94 ATC 4206 distinguished PERMANENT CUSTODIANS LIMITED v ARMA PTY LIMITED AND NEIL TEVES NSD 1758 OF 2004 CONTI J 29 MAY 2006 SYDNEY
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