American Home Assurance Company v James Stewart Kirby [2003] NSWCA 395

Reported Decision : (2004) 13 ANZ Insurance Cases 61-600

New South Wales Court of Appeal

CITATION : American Home Assurance Company v James Stewart Kirby [2003] NSWCA 395 HEARING DATE(S) : 05/12/03 JUDGMENT DATE : 9 February 2004

JUDGMENT OF : Handley JA at 1; McColl JA at 2; Cripps AJA at 3 DECISION : i) Appeal upheld.; ii) The decision of his Honour Judge Walmsley SC set aside.; iii) The matter to be remitted to the District Court to be further dealt with in accordance with the conclusions above.; iv) BDO to pay American's costs of the cross claim against American to date.; v) BDO to pay American's costs of the appeal but to have a certificate under the Suitors Fund Act 1951 if, so qualified.

CATCHWORDS : Insurance - professional indemnity insurance - scope and extent of the coverage of this insurance policy determined by the policy's definition of "claims" - indemnity under this insurance policy covers costs arising in defending a professional negligence claim against the policy holder - scope of policy does not extend to any substantial alteration in the nature of the claim or claims defended and/or cross-claims arising from such alterations - statutory extension of insurance policy under Insurances Contracts Act 1984 s40(3) does not apply on these facts. LEGISLATION CITED : Insurance Contracts Act 1984 (Cth) s40(3) Fair Trading Act 1987 (NSW) CASES CITED : Junemill Ltd (in liq) v FAI General Insurance Co Ltd [1999] 2 QR 136. Newcastle City Council v GIO General Ltd (1997) 191 CLR 85. PARTIES : Appellant: American Home Assurance Company Respondent: James Stewart Kirby FILE NUMBER(S) : CA 041111/02 COUNSEL : Appellant: R. Darke SC, B. Shields Respondent: M.F. Holmes QC, J.K. Chippindall SOLICITORS : Appellant: Ebsworth & Ebsworth lawyers Respondent: Peter Wayne & Associates