FEDERAL COURT OF AUSTRALIA Genworth Financial Mortgage Insurance Pty Ltd v KCRAM Pty Ltd (in Liquidation) (No 1) [2011] FCA 972 Citation: Genworth Financial Mortgage Insurance Pty Ltd v KCRAM Pty Ltd (in Liquidation) (No 1) [2011] FCA 972 Parties: GENWORTH FINANCIAL MORTGAGE INSURANCE PTY LTD v KCRAM PTY LTD (IN LIQUIDATION) File number: NSD 394 of 2011 Judge: PERRAM J Date of judgment: 24 August 2011 Catchwords: PRACTICE AND PROCEDURE – Leave sought to continue proceedings against respondent in liquidation – respondent insured against liability for which applicant suing Legislation: Corporations Act 2001 (Cth) ss 500, 562 Cases cited: Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liquidation) (No.2) [2009] FCA 42 cited Meehan v Stockmans Australian CafÉ (Holdings) Pty Ltd (1996) 22 ACSR 123 cited Re Sydney Formworks Pty Ltd (in liq) [1965] NSWR 646 cited Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 cited Date of hearing: 23 August 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr TM Mehigan Solicitor for the Applicant: Gadens Lawyers Counsel for the Respondent: Mr E Burrell as a Friend of the Court Solicitor for the Respondent: McCabe Terrill Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 394 of 2011 BETWEEN: GENWORTH FINANCIAL MORTGAGE INSURANCE PTY LTD Applicant AND: KCRAM PTY LTD (IN LIQUIDATION) Respondent JUDGE: PERRAM J DATE OF ORDER: 24 AUGUST 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant be granted leave to proceed against the respondent pursuant to s 500(2) of the Corporations Act 2001 (Cth) subject only to the condition that no judgment is to be enforced against the assets of the respondent without the leave of the Court. 2. The Registrar correct the Court file to change the name of the respondent to 'KCRAM Pty Ltd (in liquidation)'. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 394 of 2011 BETWEEN: GENWORTH FINANCIAL MORTGAGE INSURANCE PTY LTD Applicant AND: KCRAM PTY LTD (IN LIQUIDATION) Respondent JUDGE: PERRAM J DATE: 24 AUGUST 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant ('Genworth') is a provider of mortgage insurance to lenders. The respondent ('KCRAM') was a property valuer formerly known as PRP Valuers and Consultants Gold Coast Pty Ltd. Genworth provided mortgage insurance to lenders in respect of four loan transactions each of which was secured by a mortgage over land. The borrowers eventually defaulted and the security properties sold. The proceeds of sale were not sufficient to discharge the full amounts then owing to the lenders who then claimed under the insurance issued to them by Genworth for the difference. Genworth now says that in insuring the lenders it relied upon valuations issued to it by KCRAM which it alleges, inter alia, were issued negligently. It claims the amounts it has been required to pay to the lenders. 2 These proceedings were commenced on 5 April 2011. On 21 June 2011, the members of KCRAM resolved that it should be wound up voluntarily and it appears that the creditors acceded to this. That winding up presents a procedural hurdle for Genworth for, by s 500(2) of the Corporations Act 2001 (Cth) (the 'Act'), '[after] the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.' 3 It is for such a grant of leave that Genworth now applies. Its reasons for doing so are that KCRAM has the benefit of a policy of professional indemnity insurance which provides it with ample cover in respect of Genworth's claim. Further, because of s 562 of the Act the proceeds of any such insurance will need to be paid to Genworth in priority to all other claims which might otherwise be made on KCRAM. That being so, argues Genworth, its claim against KCRAM has no impact upon the orderly conduct of the winding up and, in a practical sense, does not involve the liquidator. For its part, KCRAM did not take part in the application and its liquidator indicated that the company had no funds. 4 I accept Genworth's submission because I am satisfied that there is utility in granting leave. This is so because the evidence placed before me showed that Genworth's case against KCRAM raised a serious question worth trying and because the presence of an apparently responsive insurance policy ensures that the proceedings are unlikely to be an exercise in futility. The necessity in cases such as the present to establish that there is a serious question to be tried appears in a number of analogous circumstances such as those obtaining in a winding up in insolvency. In that context, the Full Court of this Court remarked that the test to be applied was 'akin to that now used in considering whether interlocutory relief should be granted: "a serious question to be tried"' (Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 556 (FC)). Of course, that is not a sufficient reason for a grant of leave because ordinarily the Act consigns to the liquidator the processing of claims by creditors (including contingent creditors such as plaintiffs). In this case, however, the existence of a responsive insurance policy is a sufficient reason to take it outside that principle: cf. Re Sydney Formworks Pty Ltd (in liq) [1965] NSWR 646 at 651 per McLelland CJ in Equity; Meehan v Stockmans Australian CafÉ (Holdings) Pty Ltd (1996) 22 ACSR 123 at 127 per Lehane J; Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liquidation) (No.2) [2009] FCA 42 at [23] per Jacobson J. 5 As to the facts of the matter the following should be observed. There were four loans. The lender, the amount of each loan, the loss sustained by the lender on the sale of the security property and the valuation placed upon the security property by KCRAM were as follows: Lender Loan Lender's loss KCRAM's valuation Macquarie $405,650 $124,419.87 $427,000 Macquarie $772,500 $303,450.21 $1,030,000 Permanent $589,206.24 $104,383.28 $775,000 Permanent $800,000 $317,968.75 $1,000,000 6 In its pleading Genworth alleges the four properties (in the same order as above) were actually worth $355,000, $800,000, $575,000 and $750,000 respectively at the time of valuation. Given the disparities between the valuations and the prices for which they were apparently realised there is, so it seems to me, a serious question to be tried about the quality of the valuation process. 7 There was placed before me also a certificate of currency issued by a broker indicating that as at 14 January 2010 KCRAM, then known as PRP Valuers and Consultants Gold Coast Pty Ltd, had the benefit of a professional indemnity policy issued by Asset Insure. That policy is a claims-made policy which expired at 14 April 2011. Its insuring clause provided cover for claims made on KCRAM which were notified to the insurer during the policy period which was defined in the Schedule to the policy as being the period 14 January 2010 to 14 April 2011. In relation to each loan, Genworth wrote to KCRAM during the policy period informing it of its claim and asking it to notify its insurer. In the case of three of those loans, KCRAM informed Genworth that it had so informed its insurer. In relation to the fourth there is no direct evidence that KCRAM did, in fact, notify the insurer. The letter making the claim, however does contain the statement 'Please notify your professional indemnity insurer of this letter'. Given that KCRAM had notified the insurer on the previous three occasions and given the absence of any good reason why it would not notify it on the fourth, I am prepared to infer there is a serious question as to whether it did notify its insurer. 8 In those circumstances, the proceedings against KCRAM are unlikely to lack utility and leave should be granted subject only to the condition that no judgment is to be enforced against the assets of KCRAM without the leave of the Court. The change of KCRAM's name from PRP Valuers and Consultants Gold Coast Pty Ltd needs also to be reflected on the Court file. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 24 August 2011