ZHANG & ANOR v MINOX SECURITIES PTY LTD & ORS; LIU & ORS v MINOX SECURITIES PTY LTD & ORS [2009] NSWCA 182

Reported Decision: 72 ACSR 556

New South Wales Court of Appeal

CITATION: ZHANG & ANOR v MINOX SECURITIES PTY LTD & ORS; LIU & ORS v MINOX SECURITIES PTY LTD & ORS [2009] NSWCA 182

HEARING DATE(S): 24/02/09

JUDGMENT DATE: 7 July 2009

JUDGMENT OF: Hodgson JA at 1; Macfarlan JA at 5; Handley AJA at 6

(1) Leave to appeal granted. (2) Claimants to file and serve their draft notice of appeal within 10 days. Further compliance with the rules dispensed with. (3) Appeal allowed in part. DECISION: (4) Orders one and two in the Equity Division set aside and in lieu thereof grant leave to the appellants to commence proceedings against QBE Insurance (Australia) Ltd to enforce their rights under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of the Professional Indemnity policy the subject of these proceedings. (5) Appeal otherwise dismissed. (6) Respondent is to pay the appellants' costs of the appeal and of the relevant proceedings in the Equity Division.

CATCHWORDS: INSURANCE – liability insurance – whether claimants should have leave to commence proceedings against the insurer – whether arguable case. - INSURANCE – composite policy – construction of exclusion clause for unauthorised acts – whether exclusion denied cover for innocent employer.

Corporations Act LEGISLATION CITED: Financial Services Reform Act 2001 Law Reform (Miscellaneous Provisions) Act 1946

CATEGORY: Principal judgment

Federation Insurance Limited v Watson (1987) 163 CLR 303 General Accident Fire and Life Assurance Corporation Ltd v Midland Bank Ltd [1940] 2 KB 388 CA 405-6 CASES CITED: Gilmore v AMP General Insurance Co. Ltd (1996) 67 SASR 387 FC. Lombard Australia Ltd v NRMA Insurance Limited (1968) 72 SR (NSW) 45 CA McCann v Switzerland Insurance Australia Ltd [2000] HCA 65 203 CLR 579 Oswald v Bailey (1987) 11 NSWLR 715CA