NSW Caselaw
NIGEL WATTS FASHION AGENCIES PTY LTD v GIO GENERAL LTD
SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
KirBY P, MAHONEY and HANDLEY JJA 24 May 1994, 22 December 1994
[1994] NSWCA 365
INSURANCE — insurers' duty of utmost good faith — lawyers retained by insurer conduct proceedings — possible conflict of interest and duty not drawn to notice of insured — whether estoppel by representation — held: There is.
LEGAL PRACTITIONERS — conflict of interest of duty — solicitors retained by insurer- duty to scrutinise and alert insured as to any possible limitation of indemnity provided.
ESTOPPEL- conventional estoppel — estoppel by representation — insurer conducts legal proceedings — held: estopped from denial of indemnity.
INSURANCE — employers' indemnity — workers' compensation extension — claim by worker against occupier of building in respect of injury received when he falls in lift — fall accepted to be the consequence of the occupier's negligence — occupier joins employer as third party claiming indemnity — indemnity claimed is based upon (a) joint liability of employer and occupier as joint tortfeasors; and (b) provisions of a lease affording occupier complete indemnity by contract in respect of claims of injury to employees of employer — trial judge (Madgwick DCJ) finds in favour of worker against occupier but in favour of occupier against employer under terms of lease — insurer denies indemnity under workers' compensation policy on ground that the employer's liability rests solely on contract to which the insurance did not respond — primary judge (Windeyer J) rejects claims based upon (i) terms of policy; (ii) estoppel; and (iii) election by insurer to provide indemnity by conducting employer's defence
INSURANCE — duties of insurer — duty of utmost good faith — reciprocal duty of insurer and insured — limited liability of insurer under policy of indemnity — insurer exercises right to take over defence of insured — fails until during trial to bring to insured's notice relevant limitation of indemnity and risk, in the pleadings and relevant facts that insured will be exclusively liable to meet claim without indemnity — possible conflict of interest and duty of insurer's retained solicitors — failure to bring conflict to notice of insured
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