Rian Lane v Dive Two Pty Ltd [2012] NSWSC 104

Supreme Court New South Wales

Medium Neutral Citation: Rian Lane v Dive Two Pty Ltd [2012] NSWSC 104 Hearing dates: 6 February 2012 - 10 February 2012 Decision date: 24 February 2012 Jurisdiction: Common Law Before: Adamson J Decision: (1) Judgment for the second cross-defendant on the cross-claim. (2) The parties are to deliver to my chambers a minute of judgment reflecting the above reasons when the amount of the plaintiff's costs has been agreed or assessed so that that amount can be included in the judgment sum. (3) Direct that any application that the costs order should be other than an order that the first cross-defendant pay the cross-claimants' and the second cross-defendant's costs of the cross-claim be made within seven days of the date of this order. (4) If no such application is made within seven days, the order of the Court will be that the first cross-defendant pay the cross-claimants' and the second cross-defendant's costs of the cross-claim. Catchwords: CONTRACT - construction - construction of an insuring clause - meaning of "in connection with the Insured's business" - construction by reference to external factors - construction of an exclusion clause in a contract of insurance - meaning of "criminal act" - whether the contract of insurance excludes negligent criminal acts - maxims of construction - the contra proferentem rule - implied retainer TORT - negligence - negligent misstatement - negligent misrepresentation - duty of care - scope of an insurance broker's duties under an implied retainer - standard of care - standard of care expected of a reasonably competent insurance broker - breach of duty PRACTICE AND PROCEDURE - pleadings - whether cross-claimants ought to be constrained by their pleadings - sufficiency of pleaded case in all the circumstances - undesirability of deciding substantive matter on pleading points - distinction between negligent misstatement and negligent representation Legislation Cited: - Civil Liability Act 2002 - Crimes Act 1900 - Insurance Contracts Act 1984 (Cth) - Marine Insurance Act 1909 (Cth) - Water Traffic Regulations Cases Cited: - Anthony John Sharp & Anor v Sphere Drake Insurance PLC & Ors [1992] 2 Lloyds LR 501 - Australian Aviation Underwriting Pty Limited v Henry (1988) 12 NSWLR 121 - Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 - Darlington Futures Limited v Delco Australia Pty Limited (1986) 161 CLR 500 - Drayton v Martin (1996) 67 FCR 1 - El Hayek v Vasic [2010] NSWSC 634 - Fanhaven Pty Ltd v Bain Dawes Northern Pty Ltd [1982] 2 NSWLR 57 - Fraser v The Irish Restaurant & Bar Company P/L [2008] QCA 270 - Geoffrey W Hill & Associates (Insurance Brokers) Pty Limited v Squash Centre (Allawah North) Pty Limited [1996] ANZ Ins Cases 61-012 - Hadfield v Health Insurance Commission (1987) 15 FCR 487 - Health Insurance Commission v Freeman (1998) 158 ALR 267 - Heydon v NRMA Limited (2000) 51 NSWLR 1 - Intrend Pty Ltd & Ors v O'Halloran & Ors [2006] SADC 95 - Jiminez v R (1992) 173 CLR 572 - Johnson v American Home Insurance Co (1998) 192 CLR 266 - Jones v Dunkel (1959) 101 CLR 298 - McCann v Switzerland Insurance (2000) 203 CLR 579 - Ogden & Co Pty Ltd v Reliance Fire Sprinkler Co Pty Ltd [1975] 1 Lloyd's LR 52 - Our Town FM Pty Ltd v Australian Broadcasting Pty Ltd (1987) 16 FCR 465 - QBE Insurance Australia Ltd v Vasic [2010] NSWCA 166 - R v Phirum Uch De Montero [2009] VSCA 255 - RAA-GIO Insurance Limited t/as RAA Insurance v O'Halloran & Ors [2007] HCATrans 688 - RAA-GIO Insurance Ltd v O'Halloran & Ors; Australian Kitchen Industries P/L v O'Halloran [2007] SASC 245 - Rian Lane v Dive Two Pty Ltd [2012] NSWSC 49 - Selected Seeds Pty Ltd v QBEMM Pty Ltd [2009] QCA 286 - Thomas v State of New South Wales [2008] NSWCA 316 - Xerri v Kingmill Pty Limited (t/as Thrifty Car Rentals) (1998) 25 MVR 569 Texts Cited: - Lewison and Hughes, The Interpretation of Contracts in Australia (2012) - Pearce, Statutory Interpretation in Australia (2011) Category: Principal judgment Parties: Rian Lane (Plaintiff) Dive Two Pty Ltd (First Defendant, First Cross-claimant) William Andrew Todd (Second Defendant, Second Cross-claimant) Horsell International Pty Ltd (First Cross-defendant) Liberty Mutual Insurance Company (Second Cross-defendant) Representation: D Campbell SC with T Meakes (Plaintiff) C V Birch SC with P Lowson (Defendants, Cross-claimants) A S Martin SC with G M Drew (First Cross-defendant) J Sexton SC with D Macfarlane (Second Cross-defendant) Beston Macken McManis (Plaintiff) Slater & Gordon (Defendants, Cross-claimant) McLachlan Chilton (First Cross-defendant) Riley Gray-Spencer (Second Cross-defendant) File Number(s): 2008/00289706