Technology Swiss Pty Ltd v AAI Limited trading as Vero Insurance [2021] FCA 95

Federal Court of Australia

Technology Swiss Pty Ltd v AAI Limited trading as Vero Insurance [2021] FCA 95 File number: NSD 557 of 2020

Judgment of: ALLSOP CJ

Date of judgment: 12 February 2021

Catchwords: INSURANCE – subrogation and recoupment – indemnity principle – where insurer accepted liability to indemnify but disputed quantification of loss – where parties settled by way of deed of release and payment of settlement sum – where parties to deed did not identify what part of the sum was paid by way of indemnity – where insured later recovered damages from third party – whether insurer entitled to recoupment – whether any part of settlement sum was mutually intended to represent payment by way of indemnity under the policy INSURANCE – subrogation and recoupment – where goods were under insured and insured was deemed to be acting as own insurer in respect of uninsured balance – where insurer partially indemnified insured – where insured recovered damages from third party – distribution of recovered monies – application of Marine Insurance Act 1909 (Cth) s 87

Legislation: Marine Insurance Act 1909 (Cth) ss 22, 62, 77, 84, 85, 87

Cases cited: Advanced Arbor Services Pty Limited v Phung [2009] NSWSC 1331 Assicurazioni Generali De Trieste v Empress Assurance Corporation Limited [1907] 2 KB 814 Austin v Zurich General Accident and Liability Insurance Co Ltd [1944] 2 All ER 243 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243; 15 ANZ Insurance Cases 61-780 Brooks v MacDonnell (1835) 1 Y & C Ex 500; 160 ER 204 Bupa Australia Pty Ltd v Shaw [2013] VSC 507; (2014) 18 ANZ Insurance Cases 61-989 Burnand v Rodocanachi Sons & Co (1882) 7 App Cas 333 Castellain v Preston (1883) 11 QBD 380 ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales [2004] NSWCA 55; 60 NSWLR 18 Insurance Corp of British Columbia v Teck Metals Ltd [2020] BCJ No 295 John Edwards and Company v Motor Union Insurance Company Limited [1922] 2 KB 249 King v Victoria Insurance Company Limited [1896] AC 250 MOS Beverages Pty Ltd v Insurance Australia Ltd trading as CGU Insurance [2020] FCA 1716 Napier v Hunter [1993] AC 713 Qureshi (Guardian ad litem of) v Nickerson [1991] BCJ No 624; 77 DLR(4th) 1 Simpson and Co v Thomson (1877) 3 App Cas 279 State Government Insurance Office (Qld) v Brisbane Stevedoring Pty Ltd [1969] HCA 59; 123 CLR 228 Sydney Turf Club v Crowley [1971] 1 NSWLR 724 Wabbits Pty Limited v Godfrey [2009] NSWSC 1299 Wellington Insurance Co Ltd v Armac Diving Services Ltd (1987) 38 DLR(4th) 462