FISHWIVES PTY LTD v FAI GENERAL INSURANCE CO LTD & ORS [2001] NSWCA 193

Reported Decision : (2002) 12 ANZ Insurance Cases 61-515

New South Wales Court of Appeal

CITATION : FISHWIVES PTY LTD v FAI GENERAL INSURANCE CO LTD & ORS [2001] NSWCA 193 FILE NUMBER(S) : CA 40286/99 HEARING DATE(S) : 17 May 2001 JUDGMENT DATE : 27 June 2001

PARTIES : FISHWIVES PTY LTD v FAI GENERAL INSURANCE CO LTD & ORS JUDGMENT OF : Mason P at 1; Meagher JA at 53; Handley JA at 54

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9474/97 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

Appellant: P M Biscoe QC/ CA Vindin COUNSEL : 1st & 2nd Respondent: D L Davies SC 3rd Respondent: P T Taylor Appellant: Pryor Tzannes & Wallis SOLICITORS : 1st & 2nd Respondent: Blake Dawson Waldron 3rd Respondent: Phillips Fox CATCHWORDS : Insurance - claims made and notified policy - failure to disclose "circumstances which may give rise to a claim" - scope of s6(4) of Law Reform (Miscellaneous Provisions) Act 1946 (ND) DECISION : Appeal dismissed with costs. Cross appeal by FAI General Insurance Co Ltd dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40286/99 DC 9474/97 MASON P MEAGHER JA HANDLEY JA

Wednesday 27 June 2001 FISHWIVES PTY LIMITED v FAI GENERAL INSURANCE CO LTD & 2 ORS

JUDGMENT 1 MASON P: The appellant is a hapless plaintiff that sued its architect to judgment for professional negligence only to find the defendant insolvent. The defendant was insured against liability for professional negligence under a claims made and notified policy. Consequently, the appellant sought leave to commence proceedings against three insurers each of whom covered one third of the risk. Leave was refused. This appeal, itself by leave, challenges that order and the two grounds upon which it stands. 2 Judge Delaney refused leave on two bases, each of which must be overcome if the appellant is to be successful in this appeal: (i) s6 of the Law Reform (Miscellaneous Provisions) Act 1946 (the Act) did not apply to a claims made and notified policy; (ii) the insurers were entitled to disclaim liability because of the insured's failure to disclose certain matters in the relevant proposal form.