Guardian Trust Australia Limited v Swinbank & Ors [2000] NSWCA 345

New South Wales Court of Appeal

CITATION : Guardian Trust Australia Limited v Swinbank & Ors [2000] NSWCA 345 revised - 5/12/2000 FILE NUMBER(S) : CA 40954/99 HEARING DATE(S) : 8 and 9 November 2000 JUDGMENT DATE : 30 November 2000

Guardian Trust Australia Limited (in its capacity as Trustee of Meridian Investments Trusts No. 1, 2, 3, 4, 5 & 6) (Appellant) Christopher Mark Swinbank (sued on his own behalf and on behalf of Michael Payne & Ors (now known as R J Wallace) and A M Sharpe & Ors (now known as David Marshall & Ors) (First Respondent) Aegon Insurance Company (UK) Limited (Second Respondent) PARTIES : HIH Winterthur Underwriting and Agency Services Limited (formerly CE Heath Underwriting Agency and Services Limited) On behalf of HIH Casualty and General Insurance Limited (formerly CE Heath Casualty and General Insurance Limited) (Third Respondent) FAI General Insurance Company Limited (Fourth Respondent) Royal & Sun Alliance Insurance Australia Limited (formerly Sun Alliance Australia Ltd) (Fifth Respondent) MMI General Insurance Limited (formerly Switzerland General Insurance Limited (Sixth Respondent) GIO Insurance Limited (formerly the GIO) (Seventh Respondent) JUDGMENT OF : Mason P at 1; Stein JA at 2; Heydon JA at 62

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT EQ 50007/98 FILE NUMBER(S) : LOWER COURT Einstein J JUDICIAL OFFICER :

COUNSEL : R C McDougall QC/R J Powell (Appellant) M A Pembroke SC/D L Williams/N J Beaumont (Respondents) SOLICITORS : Baker & McKenzie (Appellant) Ebsworth & Ebsworth (Respondents) CATCHWORDS : INSURANCE - Professional Indemnity insurance policy - continuing omission to disclose - breach of fiduciary obligations - dishonesty exclusion clause - ND DECISION : Appeal dismissed with costs