IBBCO Trading Pty Ltd v HIH Casualty & General Insurance Ltd [2001] NSWSC 490

New South Wales Supreme Court

CITATION : IBBCO Trading Pty Ltd v HIH Casualty & General Insurance Ltd [2001] NSWSC 490 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50105/2000 HEARING DATE(S) : 30 and 31 May 2001 JUDGMENT DATE : 31 May 2001

PARTIES : IBBCO Trading Pty Limited (Plaintiff) HIH Casualty and General Insurance Ltd (Defendant) JUDGMENT OF : Bergin J

COUNSEL : PW Taylor SC (Plaintiff) No appearance for defendant SOLICITORS : Clayton Utz (Plaintiff) CATCHWORDS : Claim for indemnity under Export Policy of Trade Credit Insurance - Indemnity denied on basis of alleged dispute between Buyer and Insured - Whether dispute existed - whether Insurer entitled to refuse to indemnify Insured. LEGISLATION CITED : Insurance Contracts Act, 1984 CASES CITED : A & B Taxis Ltd v The Secretary of State (1922) 2 KB 328 Elliott Steam Tug Co Ltd v The Shipping Controller (19220 1 KB 127 DECISION : Application allowed. Judgment stayed pursuant to leave granted to proceed.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BERGIN J

DATE: 31 MAY 2001

050105/00 - IBBCO TRADING PTY LTD v HIH CASUALTY & GENERAL INSURANCE LTD

JUDGMENT

1 The proceedings were commenced on 3 August 2000 by the plaintiff, IBBCO Trading Pty Ltd (IBBCO) against the defendant, HIH Casualty General Insurance Limited, with which IBBCO is insured under a policy E97/TC/031411 (the Policy) relevantly for the policy period 1 November 1997 to 31 October 1998. A Provisional Liquidator was appointed to the defendant on 15 March 2001. On 4 May 2001 Hunter J granted to IBBCO leave to proceed in these proceedings against the defendant upon the condition that any judgment obtained by IBBCO in the proceedings be stayed until further order of the Court. 2 This matter was listed for hearing on 30 May 2001 for three days. On 30 May when the matter was called on, Mr P W Taylor SC, appeared for the plaintiff and there was no appearance for the defendant. Solicitors for the Provisional Liquidator, Blake Dawson & Waldron, wrote to the solicitors for the plaintiff and to the solicitors formerly acting for the defendant, Minter Ellison in Melbourne and stated the following in a facsimile of 23 May 2001: We have been instructed to advise you that HIH will not appear at the trial of this action to defend this action. The Provisional Liquidator will consider any proof of debt lodged by your client in due course on the basis of a judgment obtained in these proceedings and reserve all their rights to consider such a proof of debt should it be lodged.