QBE Underwriting Ltd as managing agent for Lloyds Syndicate 386 v Southern Colliery Maintenance Pty Ltd [2018] NSWCA 55

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: QBE Underwriting Ltd as managing agent for Lloyds Syndicate 386 v Southern Colliery Maintenance Pty Ltd [2018] NSWCA 55 Hearing dates: 1 and 2 March 2018 Date of orders: 28 March 2018 Decision date: 28 March 2018 Before: Macfarlan JA at [1]; Leeming JA at [2]; Payne JA at [132] Decision: 1. Appeal allowed in part.

2. Vary the judgment entered in favour of Southern Colliery Maintenance Pty Ltd on 28 April 2017 by replacing $265,000 with $215,000.

3. Otherwise dismiss the appeal.

4. The appellant to pay the respondent's costs of the appeal. Catchwords: INSURANCE – public and products liability policy – construction – scope of insuring clause – labour hire company – employee injured when working in coal mine – employee claimed against mine owner and employer – mine owner cross-claimed against employer – settlement reached between employee, employer and mine owner – insurer declined cover – whether claim for breach of contract within insuring clause – whether insuring clause extended to mine owner's costs – whether exclusion for assumed liabilities applicable

INSURANCE – duty of disclosure – whether insured had disclosed contract between it and mine owner which contained indemnity – whether letter referring to contract provided to insurer's agent – whether letter sufficient to satisfy duty of disclosure – whether letter provided before contract came into existence – distinction between knowledge of insurer and disclosure by insured – whether insurer entitled to reduce liability to nil – Insurance Contracts Act 1984 (Cth), ss 21 and 28