Rich v CGU Insurance Limited [2005] HCA 16

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

Matter No S232/2004

JOHN DAVID RICH APPELLANT

AND

CGU INSURANCE LIMITED RESPONDENT

Matter No S233/2004

MARK ALAN SILBERMANN APPELLANT

AND

CGU INSURANCE LIMITED RESPONDENT

Rich v CGU Insurance Limited

Silbermann v CGU Insurance Limited

[2005] HCA 16

7 April 2005

S232/2004 and S233/2004

ORDER

In each matter:

1. Special leave rescinded.

2. Appellant to pay the respondent's costs of the proceedings in this Court.

On appeal from the Supreme Court of New South Wales

Representation:

D L Williams SC with M A Jones for the appellants (instructed by Joanne Kelly)

D F Jackson QC with A W Street SC and E G Romaniuk for the respondent (instructed by Colin Biggers & Paisley)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Rich v CGU Insurance Limited

Silbermann v CGU Insurance Limited

Insurance – Professional indemnity insurance – Directors and officers liability insurance policy – Exclusion for losses arising from dishonest, fraudulent or malicious conduct – Exclusion engaged only where conduct established to have occurred following final adjudication adverse to the insured – Proceedings instituted against appellants involving questions of breach of duty as company directors – Appellants claimed for advance payment of defence costs under policy – Respondent insurer purported to deny liability relying on exclusion under the policy – Respondent also argued that it had avoided the policy under the Insurance Contracts Act 1984 (Cth), s 28 – Whether respondent can rely on exclusion absent an existing judgment or other final adjudication adverse to appellants.