Insurance Thursday, 12 March 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


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Executive Summary (One Minute Read)
Sienkiewicz (As Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd (in Liq) (No 2) (FCA) - insurance - financial services errors and omissions policy - financial adviser’s cross-claim against insurers dismissed 
Chel v Fairfax Media Publications Pty Ltd (NSWSC) - pleadings - defamation - permission to amend statement of claim refused - statement of claim not struck out 
Ioppolo v Conti (WASCA) - superannuation - trustee’s discretion - Superannuation Industry (Supervision) Act 1993 (Cth) did not require appointment of executor of deceased member’s estate - appeal dismissed
The Hancock Family Memorial Foundation Ltd v Lowe (WASCA) - professional indemnity insurance - construction and validity of condition - appeal dismissed 
Summaries With Link (Five Minute Read)
Sienkiewicz (As Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd (in Liq) (No 2) [2015] FCA 147
Federal Court of Australia
Robertson J
Insurance - financial services errors and omissions insurance policy - proceedings originally comprised two claims - claim by trustee of Sienkiewicz retirement fund - claim by trustee for AT Melville retirement fund - both claims for damages against former financial advisers, namely company and its representatives - company in liquidation - there was also claim against financial advisers’ professional indemnity insurers - applicants settled case against representatives and discontinued against company - one representative continued claim against insurers for indemnity - meaning and application of insuring clause of policy - whether representative an insured - any Authorised representative - meaning and application of endorsements and exclusions - approved investment products - whether s54 Insurance Contracts Act 1984 (Cth) prevented insurer from refusing to pay claim - held: representative’s cross-claim against insurers dismissed.
Sienkiewicz (As Trustee for the Sienkiewicz Superannuation Fund)
Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171
Supreme Court of New South Wales
McCallum J
Pleadings - defamation - actions arising out of publication in newspaper - plaintiff sought to amend pleading to include, as imputations complained of by her, two contextual imputations pleaded by defendants in support of defence of contextual truth - defendants sought to have reply struck out pursuant to r14.28 Uniform Civil Procedure Rules 2005 (NSW) - held: Court not persuaded plaintiff sought to vindicate reputation against defamatory meanings captured in defendants’ contextual imputations - plaintiff sought leave to amend to plead imputations she eschewed - dictates of justice did not require Court to allow amendment - in circumstances where further particulars to be provided, inappropriate to strike out pleading.
Ioppolo v Conti [2015] WASCA 45
Court of Appeal of Western Australia
Martin CJ, Buss JA & Beech J
Superannuation - first respondent (Mr Conti) and late wife (Mrs Conti) became trustees and beneficiaries of trust fund established by deed which required compliance with Superannuation Industry (Supervision) Act 1993 (Cth) - after Mrs Conti died, probate of Will granted to appellants, who were son and daughter - Mr Conti as trustee of fund determined benefits standing to account of late Mrs Conti would be paid to him rather than children - executors claimed that Mr Conti required by s17A to appoint one of them to act as trustee of fund in place of late Mrs Conti and that until such appointment Mr Conti had no power to deal with Mrs Conti’s interest in fund - executors  asserted determination to confer interest void - held:  Master correct to hold s17A did not require Mr Conti to appoint one or other of executors trustee of the Fund, and that there was no evidence of bad faith in making determination - appeal dismissed.
The Hancock Family Memorial Foundation Ltd v Lowe [2015] WASCA 38
Court of Appeal of Western Australia
McLure P, Newnes JA & Beech J
Professional indemnity insurance - primary judge dismissed appellant’s action against respondents under s51 Insurance Contracts Act 1984 (Cth) - primary issue at trial was proper construction of condition in two excess professional indemnity insurance contracts between late solicitor and respondents - appeal also included challenge to the validity of the condition as construed by the trial judge - test of implied retainer - estoppel by convention - classification of policies as true excess insurance - held: purpose of condition was to make obligation to indemnify  conditional on solicitor establishing both the fact and amount of fund’s liability to indemnify solicitor - trial judge’s construction of condition correct - condition not void under s52 - appeal dismissed.
The Hancock Family Memorial Foundation Ltd