BNY Trust Company of Australia Limited v MMJ Real Estate (WA) Pty Ltd [2018] NSWSC 1052

Supreme Court New South Wales

Medium Neutral Citation: BNY Trust Company of Australia Limited v MMJ Real Estate (WA) Pty Ltd [2018] NSWSC 1052 Hearing dates: 26 June 2018 Date of orders: 13 July 2018 Decision date: 13 July 2018 Jurisdiction: Common Law Before: Davies J Decision: (1) I order pursuant to r 28.2 Uniform Civil Procedure Rules 2005 that the following matters should be determined separately from, and prior to, the final hearing of the proceedings:

(a) Whether the cross-defendant (XL) is entitled to decline to:

(i) indemnify the First Defendant/Cross-claimant on the First Cross-claim (MMJ) under Professional Indemnity Insurance Policy No. AU00006350EO16A (the Policy) for any "Loss" (as defined in the Policy) (Loss) incurred by the cross-claimant in respect of the Plaintiffs claim against it in the proceedings; and

(ii) to pay "Defence Costs" (as defined in the Policy) (Defence Costs) in relation to that claim,

by reason of the operation of clause (ix) of Endorsement 1 to the Policy.

(b) Whether XL is entitled to decline to:

(i) indemnify the Second Defendant/Cross-claimant on the Third Cross-claim (Volk) under the Policy for any Loss incurred by Volk in respect of the Plaintiffs claim against him in the proceedings; and

(ii) to pay Defence Costs in relation to that claim,

by reason of the operation of clause (ix) of Endorsement 1 to the Policy.

(c) Whether XL is entitled to decline to:

(i) indemnify the Third Defendant/Cross-claimant on the Second Cross-claim (Hosking) under the Policy for any Loss incurred by the cross-claimant in respect of the Plaintiffs claim against the cross-claimant in the proceedings; and