Australian Rail Track Corporation Ltd v QBE Insurance (Europe) Ltd and Ors [2013] NSWCA 175

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Australian Rail Track Corporation Ltd v QBE Insurance (Europe) Ltd and Ors [2013] NSWCA 175 Hearing dates: 22 March 2013 Decision date: 17 June 2013 Before: Meagher JA at [1]; Ward JA at [38]; Tobias AJA at [39]. Decision: (1) Appeal dismissed. (2) Appellant pay the costs of the first to fourth respondents of the appeal. [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: INSURANCE - construction of policy - applicability of excess provision to appellant's claim to indemnity - whether primary judge erred in concluding that excess applied to each occurrence which caused injury or damage rather than each claim made by an insured to an indemnity - primary judge's construction correct Cases Cited: Australian Rail Track Corporation Ltd v QBE Insurance (Europe) Ltd [2012] NSWSC 952 AXA Reinsurance (UK) PLC v Field [1996] 1 WLR 1026 Forney v Dominion Insurance Co Ltd [1969] 1 WLR 928 Lloyds TSB General Insurance Holdings Ltd v Lloyds Bank Group Insurance Co Ltd [2003] UKHL 48; [2003] 4 All ER 43 The Distillers Company Biochemicals (Australia) Pty Ltd v Ajax Insurance Company Ltd [1974] HCA 3; 130 CLR 1 Category: Principal judgment Parties: Australian Rail Track Corporation Ltd (Appellant) QBE Insurance (Europe) Ltd (First Respondent) Brit Syndicates Ltd (Lloyds Syndicate 2987) (Second Respondent) Newline Underwriting Management Ltd (Lloyds Syndicate 1218) (Third Respondent) QBE Underwriting Ltd (Lloyds Syndicate 386) (Fourth Respondent) Country Rail Infrastructure Authority (Fifth Respondent) Representation: Counsel: Dr A S Bell SC (Appellant) R J H Darke SC, E C Muston (First to Fourth Respondents) Submitting appearance (Fifth Respondent) Solicitors: Clayton Utz (Appellant) Norton Rose Australia (First to Fourth Respondents) Moray & Agnew (Fifth Respondent) File Number(s): 2012/289549 Decision under appeal Jurisdiction: 9111 Citation: Australian Rail Track Corporation Ltd v QBE Insurance (Europe) Ltd [2012] NSWSC 952 Date of Decision: 2012-08-21 00:00:00 Before: Stevenson J File Number(s): 2012/101760