Kerembla Pty Ltd v XL Insurance Company SE, trading as Brooklyn Underwriting [2023] FCA 769

Federal Court of Australia

Kerembla Pty Ltd v XL Insurance Company SE, trading as Brooklyn Underwriting [2023] FCA 769 File number(s): NSD 497 of 2022

Judgment of: JACKMAN J

Date of judgment: 7 July 2023

Catchwords: INSURANCE – indemnity sought pursuant to public and product liability insurance policy – claim in relation to collision of mining equipment with bridge – where it is accepted that the insuring clause responds to the claim – whether certain write-backs to an exclusion clause are applicable – vehicle was being used as a tool of trade on a worksite – write-back does not capture damage caused by or arising out of the loading of the vehicle – declaratory relief granted

Cases cited: Entertainment Group Ltd v Chubb Insurance Australia Limited [2022] FCAFC 16; (2022) 400 ALR 25 Hakea Holdings Pty Ltd v Neon Underwriting Ltd [2023] FCAFC 34; (2023) 164 ACSR 591 Siegwerk Australia Pty (in liq) v Nuplex Industries Australia Pty Ltd [2013] FCAFC 130; (2013) 305 ALR 412 Weir Services Australia Pty Ltd v AXA Corporate Solutions Assurance [2018] NSWCA 100; (2018) 359 ALR 314

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 22

Date of hearing: 4 July 2023

Counsel for the Applicant: Mr P F Santucci and Ms E Dunlop

Solicitor for the Applicant: Morgan English Commercial Lawyers

Counsel for the Respondents: Mr M T McCulloch SC and Ms T A Berberian

Solicitor for the Respondents: Carter Newell Lawyers