Small Business Consortium Lloyd’s Consortium No 9056 v Angas Securities Limited [2015] NSWSC 1511

Supreme Court New South Wales

Medium Neutral Citation: Small Business Consortium Lloyd's Consortium No 9056 v Angas Securities Limited [2015] NSWSC 1511 Hearing dates: 6 October 2015 Decision date: 16 October 2015 Before: Ball J Decision: See paragraphs 72 to 74 of this judgment. Catchwords: INSURANCE – Subrogation – effect of Deed of Release on rights of subrogation - Duty of utmost good faith – distribution of funds recovered from defaulting borrower – whether plaintiff in breach of duty of utmost good faith by seeking to rely on Deed of Release – whether breach of the duty of utmost good faith to propose that insured execute Deed of Release without explicitly drawing to insured's attention the fact that the deed altered insured's rights of subrogation CONTRACTS – general contractual principles – construction and interpretation of contracts – construction of Deed of Release – clause dealing with the allocation of any money recovered from a third party – whether reference to "any funds received" must be read as a reference to any funds received in respect of a loss in respect of which insured received an indemnity from insurer Legislation Cited: Insurance Contracts Act 1984 (Cth) Trade Practices Act 1974 (Cth) Fair Trading Act 1987 (SA) Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 British Traders Insurance Co Ltd v Monson (1964) 111 CLR 86 CGU Insurance Ltd v AMP Financial Planning Pty Ltd [2007] HCA 36; (2007) 235 CLR 1 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Lord Napier and Ettrick v Hunter [1993] AC 713 Transport Accident Commission v CMT Construction of Metropolitan Tunnels (1988) 165 CLR 436 Category: Principal judgment Parties: Small Business Consortium Lloyd's Consortium No 9056 (Plaintiff/Cross Defendant) Angas Securities Limited ACN 091 942 728 (Defendant/Cross Claimant) Representation: Counsel: SR Donaldson SC with RE Raffell (Plaintiff/Cross Defendant) BC Roberts SC (Defendant/Cross Claimant)