Prosperity Advisers Pty Limited v Secure Enterprises Pty Limited t/a Strathearn Insurance Brokers [2012] NSWCA 192

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Prosperity Advisers Pty Limited v Secure Enterprises Pty Limited t/a Strathearn Insurance Brokers [2012] NSWCA 192 Hearing dates: 9 May 2012 Decision date: 25 June 2012 Before: Macfarlan JA at 1; Barrett JA at 2; Tobias AJA at 3 Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - insurance broker's advice to insured concerning insurance policy - whether the primary judge was in error in finding that the appellant had not suffered any relevant loss as a consequence of the respondent's wrongdoing - whether primary judge erred in finding that the appellant did not have a substantial prospect of acquiring a policy with the requisite protection - whether evidence that a more advantageous policy would be available and accepted - whether the primary judge made a number of factual errors in relation to conclusion that no such evidence.

DAMAGES - whether the appellant was entitled to recover damages to compensate it for that lost opportunity - principles applicable to assessment of damages for a lost chance.

COSTS - indemnity costs - whether there was a genuine offer of compromise. Legislation Cited: Trade Practice Act 1974 Uniform Civil Procedure Rules Cases Cited: Baiyai Pty Limited v Guy [2009] NSWCA 65 Barakat and others v Bazdarova [2012] NSWCA 140 Bennette v Cohen [2009] NSWCA 162 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 Daniels v Anderson (1995) 37 NSWLR 438 Dean v Stockland Property Management (No 2) [2010] NSWCA 141 Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1 Heenan v DiSisto [2008] NSWCA 25; (2008) 13 BPR 25213 Hobartville Studd Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 McCrohon v Harith [2010] NSWCA 67 Malec v J C Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Miwa Pty Limited v Siantan Properties Pty Limited (No 2) [2011] NSWCA 344 Prosperity Advisers Pty Ltd & Anor v Secure Enterprises Pty Ltd t/as Strathearn Insurance Brokers Pty Ltd [2011] NSWSC 35 Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 Uniting Church Property Trust v Takacs (No 2) [2008] NSWCA 172 Category: Principal judgment Parties: PROSPERITY ADVISERS PTY LIMITED (subject to a Deed of Company Arrangement) (ACN 099 036 361) (first appellant) PROSPERITY ADVISERS (NEWCASTLE) PTY LIMITED (ACN 146 592 752) (second appellant) SECURE ENTERPRISES PTY LIMITED t/as Strathearn Insurance Brokers (ACN 060 973 908) (respondent) Representation: Counsel: P J Brereton SC/ V E Whittaker (appellants) D B Studdy SC/ A P Lo Surdo SC (respondent) Solicitors: Gilbert + Tobin (appellants) Kennedys (Australasia) Pty Ltd (respondent) File Number(s): 2007/266547 Decision under appeal Citation: Prosperity Advisers Pty Ltd & Anor v Secure Enterprises Pty Ltd t/as Strathearn Insurance Brokers Pty Ltd [2011] NSWSC 35 Date of Decision: 2011-02-11 00:00:00 Before: Ball J File Number(s): 2007/266547