AssetInsure Pty Limited (formerly Gerling Global Reinsurance Company of Australia Pty Limited) v New Cap Reinsurance Corporation Limited (In Liq) & 3 Ors [2004] NSWCA 225

61 NSWLR 451 Reported Decision : (2004) 13 ANZ Insurance Cases 61-623 (2004) 22 ACLC 1637

New South Wales Court of Appeal

CITATION : AssetInsure Pty Limited (formerly Gerling Global Reinsurance Company of Australia Pty Limited) v New Cap Reinsurance Corporation Limited (In Liq) & 3 Ors [2004] NSWCA 225 HEARING DATE(S) : 23/06/04, 24/06/04, 25/06/04 JUDGMENT DATE : 6 October 2004

JUDGMENT OF : Hodgson JA at 1; Ipp JA at 37; Bryson JA at 235 DECISION : (A) The first cross-appeal is dismissed with costs (B) The appeal is dismissed with costs (C)(i) The second cross-appeal is upheld (C)(ii) Declaration 1(e) made by Windeyer J is set aside and in lieu thereof the following direction is made: "1(e) [Contract TY165A] for the 1998 underwriting year and [Contract FC3A] for the 1997 and 1998 underwriting years are not 'relevant contracts of insurance' within the definition of that term in subsection (8) of section 562A of the Corporations Act 2001 (Cth)." (C)(iii) Direction 2(h) made by Windeyer J is set aside and in lieu thereof the following direction is made: "2(h) The liquidator would be justified in treating a contract of reinsurance entered into by [NCRA] as reinsurer as one to which the provisions of section 562A of the Corporations Act 2001 are not applicable." (C)(iv) AssetInsure and Faraday pay NCRA and NC Re their costs of the second cross-appeal and their costs of that part of the directions hearing before Windeyer J concerning directions 1(e) and 2(h) (C)(v) AssetInsure and Faraday to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. (D) There be liberty to any party to make written submissions within 21 days in regard to the declarations and costs orders.