Malamit Pty Ltd v WFI Insurance Ltd [2017] NSWCA 162

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Malamit Pty Ltd v WFI Insurance Ltd [2017] NSWCA 162 Hearing dates: 13 June 2017 Decision date: 04 July 2017 Before: Bathurst CJ at [1]; Beazley P at [2]; Meagher JA at [3] Decision: 1. Arthur J Gallagher (Aus) Pty Ltd and Martin Andrews are joined as second and third respondents in the appeal. 2. Appeal dismissed. 3. The appellant pay WFI Insurance Ltd's costs of the appeal. 4. The appellant pay the second and third respondents' costs of the notice of motion that they be joined as parties to the appeal. Catchwords: INSURANCE – professional indemnity insurance ­– exclusions – insured and associate exclusion – distributive construction of composite insurance ­– where several insured indemnified with respect to their liabilities in conducting professional business – where cover extended to director of insured company – where insured company contracted with trustee for unit trust – where director and shareholder of insured company also sole director and shareholder of trustee – where director of insured company and his family members held shares in corporate unitholders of trust – where trustee brings civil proceedings against insured company – whether civil proceeding brought by third party within insuring clause – whether claim brought by subsidiary of insured within exclusion clause – whether claim brought for benefit of insured within exclusion clause – whether claim brought on behalf or for benefit of family members of insured

PROCEDURE – uniform civil procedure – joinder of parties – joinder on appeal of defendants alleged to be alternatively liable – where insured seeks declaration of indemnity against insurer and alternatively damages against insurance brokers – where non-liability of insurer essential to claims against brokers – where appeal from separate determination of insurer's liability – whether brokers directly affected by relief sought in appeal Legislation Cited: Civil Liability Act 2002 (NSW), Pt 4 Insurance Contracts Act 1984 (Cth), s 48 Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 51.4(1) Cases Cited: Arab Bank Plc v Zurich Insurance Co [1999] 1 Lloyd's Rep 262 Baker v Archer-Shee [1927] AC 844 Charles v Federal Commissioner of Taxation (1954) 90 CLR 598 Chubb Insurance Company of Australia Ltd v Robinson (2016) 239 FCR 300; [2016] FCAFC 17 FAI Insurance Co Ltd v Australian Hospital Care Pty Ltd (2001) 204 CLR 641; [2001] HCA 38 Federation Insurance Ltd v Wasson (1987) 163 CLR 303 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 General Accident Fire & Life Assurance Corporation Ltd v Midland Bank Ltd [1940] 2 KB 388 Lake v Simmons [1927] AC 487 Macaura v Northern Assurance Co Ltd [1925] AC 619 O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 Category: Principal judgment Parties: Malamit Pty Ltd (Appellant) WFI Insurance Ltd (Respondent) Representation: Counsel: T Lynch SC, D Hand (Appellant) J E Sexton SC, A J Barnett (Respondent)