Lambert Leasing Inc. v QBE Insurance (Australia) Ltd [2016] NSWCA 254

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lambert Leasing Inc. v QBE Insurance (Australia) Ltd [2016] NSWCA 254 Hearing dates: 7, 8 June 2016 Date of orders: 09 September 2016 Decision date: 09 September 2016 Before: Ward JA at [1]; Gleeson JA at [2]; Payne JA at [3] Decision: (1) The evidence of the settlement of the Missouri proceedings, contained in exhibits DBS-1 to DBS-16 of the affidavit of Damian Bruce Sturzaker affirmed 6 May 2016, is admitted under s 75A of the Supreme Court Act 1970 (NSW).

(2) The 24 underwriters' reports, contained in exhibit DBS-17 of the affidavit of Damian Bruce Sturzaker affirmed 6 May 2016, are admitted under s 75A of the Supreme Court Act 1970 (NSW) as against the second and third respondents but not as against the first respondent.

(3) The bill narratives, contained in exhibit DBS-18 of the affidavit of Damian Bruce Sturzaker affirmed 6 May 2016, are not admitted under 75A of the Supreme Court Act 1970 (NSW).

(4) Appeal dismissed.

(5) The appellants pay the costs of the first, second and third respondents as assessed or agreed. Catchwords: INSURANCE – whether insured obliged to provide insurer with documents to enable insurer to determine whether conditions precedent to cover satisfied – insured claimed legal professional privilege in respect of documents – whether proceedings commenced prematurely

EVIDENCE – further evidence – whether documents in respect of which legal professional privilege was claimed at trial may be tendered on appeal

INSURANCE – double insurance – both policies contain "other insurance" clauses – whether s 45 of the Insurance Contracts Act 1984 (Cth) requires the insured to have "entered into" both contracts of insurance – whether insured has "entered into" both contracts of insurance