Amaca Pty Ltd & Ors v McGrath & Anor as liquidators of HIH Underwriting and Insurance (Australia) Pty Ltd [2011] NSWSC 90

Supreme Court New South Wales

Medium Neutral Citation: Amaca Pty Ltd & Ors v McGrath & Anor as liquidators of HIH Underwriting and Insurance (Australia) Pty Ltd [2011] NSWSC 90 Hearing dates: 10 February 2011 Decision date: 02 March 2011 Before: Barrett J Decision: Short minutes to be brought in Catchwords: CORPORATIONS - winding up - insolvency - insolvent insurer - claims by insured in respect of liability for bodily injury - insurer holds reinsurance in respect of relevant risks - claim by insured for order that amounts received by the liquidators under reinsurance be applied to its claims to the exclusion of those of other insurance creditors - claim in respect of both reinsurance amounts already received and those yet to be received - statutory criteria considered - none essential except court's opinion that departure from ordinarily applicable statutory scheme is "just and equitable" - connections between particular insurance and facultative reinsurance examined - circumstances in which reinsurance obtained examined - relief to be granted in respect of amounts already received - no power to make order in respect of future receipts Legislation Cited: Corporations Act 2001 (Cth), ss 411, 555, 556, 562A James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 Third Parties (Rights Against Insurers) Act 1930 (UK) Cases Cited: Assetinsure Pty Ltd v New Cap Reinsurance Corporation Ltd [2004] NSWCA 225; [2004) 61 NSWLR 451 Assetinsure Pty Ltd v New Cap Reinsurance Corporation Ltd [2006] HCA13; (2006) 225 CLR 331 Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 HIH Casualty and General Insurance Ltd v Building Insurers' Guarantee Corporation [2003] NSWSC 1083; (2003) 202 ALR 610 New Cap Reinsurance Corporation Ltd v Faraday Underwriting Ltd [2003] NSWSC 842; (2003) 177 FLR 52 Re Dominion Insurance Co of Australia Ltd [1980] 1 NSWLR 271 Re HIH Casualty and General Insurance Ltd [2005] NSWSC 240; (2005) 190 FLR 398 Re Palmdale Insurance Ltd (in liq) (No 3) [1986] VR 43 Re Saltergate Insurance Co Ltd (No 2) [1984] 3 NSWLR 389 Texts Cited: Australian Law Reform Commission General Insolvency Report (Harmer Report), paras 763, 764 Category: Principal judgment Parties: Amaca Pty Limited - First Plaintiff Amaba Pty Limited - Second Plaintiff ABN 60 Pty Ltd - Third Plaintiff Anthony Gregory McGrath and Christopher John Honey as liquidators of HIH Underwriting and Insurance (Australia) Pty Ltd - First Defendants HIH Underwriting and Insurance (Australia) Pty Ltd - Second Defendant Representation: Counsel: Mr J C Sheahan SC/Ms KA Rees - Plaintiffs Mr F Gleeson SC/Mr R M Foreman - Defendants Solicitors: Henry Davis York - Plaintiffs Blake Dawson - Defendants File Number(s): 2010/247943