Forbes Shire Council v AG Australia Holdings Ltd [2007] NSWSC 847

Reported Decision : 155 LGERA 137 (2007) 14 ANZ Insurance Cases 61-748

New South Wales Supreme Court

CITATION : Forbes Shire Council v AG Australia Holdings Ltd [2007] NSWSC 847

HEARING DATE(S) : 28/06/07

JUDGMENT DATE : 7 August 2007

JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

DECISION : Defendant liable to pay plaintiff $1,077,903.80, being the total value of the plaintiff's insurance claim less the cost of the land, plus interest to the date of judgment.

CATCHWORDS : INSURANCE [113]- Professional indemnity insurance- Plaintiff council negligently allows development of contaminated land- Predecessor council operated gas works on the site- Policy excludes liability where insured responsible for discharge of pollution- Held contamination of site had ceased to be connected to plaintiff's activities at time claim was made- Defendant insurer cannot rely on exclusion- Whether defendant's liability excused because plaintiff's original settlement of claims defective- Settlement found to be reasonable in circumstances- Defendant liable. LOCAL GOVERNMENT [105]- Liability for torts of predecessors- Amalgamation of councils- Inchoate liability at date of amalgamation- Successor council cannot be made liable for all inchoate claims that may arise against its predecessor. WORDS & PHRASES- "Discharge".

Environmental Planning and Assessment Act 1979, s 149 Limitation Act 1969 Local Government Act 1919 (repealed), ss 13, 16(e), 20B, 21 LEGISLATION CITED : Local Government Act 1993, ss 212 ff Local Government (Areas) Act 1948, s 11 Local Government Areas Amalgamation Act 1980, ss 2(3), 4, 5 Trade Practices Act 1974, ss 52, 53A