QBE Insurance Australia Limited v The Grape House Group Pty Ltd [2022] FCA 1527

Federal Court of Australia QBE Insurance Australia Limited v The Grape House Group Pty Ltd [2022] FCA 1527 File number: VID 321 of 2022

Judgment of: MOSHINSKY J

Date of judgment: 16 December 2022

Catchwords: INSURANCE – trade insurance policy – where the insured made a claim under the policy in respect of unpaid debts – where the insurer accepted the claim and paid the insured the insured percentage (90%) of the unpaid debts – where the insured commenced proceedings in the County Court of Victoria against the buyer (a company) and its director (who had guaranteed the company's obligations) for recovery of the unpaid debts – where the buyer went into liquidation – where the insured entered into a deed of settlement with the director and his wife – where the insured recovered $200,000 under the deed of settlement – where the insurer claimed that the settlement sum constituted "Recoveries" under the policy and claimed that it was entitled to a portion of the settlement sum – whether the insurer was entitled to a portion of the settlement sum – whether the insured breached its duty of utmost good faith

Legislation: Insurance Contracts Act 1984 (Cth), ss 13, 67 County Court Civil Procedure Rules 2018 (Vic)

Cases cited: Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38 Arthur Barnett Ltd v National Insurance Company of New Zealand Ltd [1965] NZLR 874 Bupa Australia Pty Ltd v Shaw (2014) 18 ANZ Ins Cas ¶61-989; [2013] VSC 507 Driscoll v Driscoll (1918) 1 IR 152 Globe & Rutgers Fire Insurance Co v Truedell [1927] 2 DLR 659 Insurance Commission of Western Australia v Kightly (2005) 225 ALR 380 Lord Napier and Ettrick v Hunter [1993] 1 All ER 385 Speno Rail Maintenance Australia Pty Ltd v Metals & Minerals Insurance Pte Ltd (2009) 253 ALR 364 Star Entertainment Group Limited v Chubb Insurance Australia Ltd (2022) 400 ALR 25 State Government Insurance Office (Qld) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228 Transport Accident Commission v CMT Construction of Metropolitan Tunnels (1988) 165 CLR 436