Who gets what?  Dividing recovery proceeds between insured and insurer

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Who gets what?  Dividing recovery proceeds between insured and insurer

Technology Swiss Pty Ltd v AAI Limited t/a Vero Insurance [2021] FCA 95

The Federal Court of Australia recently considered how to allocate between insurer and insured the proceeds of a recovery action against a third party. The case emphasises that an insurer has a right to share in the proceeds of a recovery action only to the extent that the insurer provides indemnity under the policy. Where the insurer pays a settlement to the insured for costs incurred by the insured which are not part of the indemnity provided by the policy then, absent a contractual right, the insurer has no right to share in the fruits of a recovery action. If the insurer wants to procure this right, it needs to ensure that the settlement agreement with the insured makes this clear.

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Clarifying minority shareholder’s buy out rights

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Clarifying minority shareholder’s buy out rights

Birchfield v Birchfield Holdings Limited [2021] NZCA 428

The Court of Appeal considered recently the issue of a minority shareholder’s rights in a case where the minority shareholder refused to accept buy-out offers and then claimed the company had acted in an unfairly prejudicial manner towards him. In so doing, the Court of Appeal also provided useful guidance on how the majority can use the summary judgment fast track procedure to buy out the minority.

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Second Covid test case in Australia favours insurers

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Second Covid test case in Australia favours insurers

Swiss Re International SE v LCA Marrickville Pty Limited [2021] FCA 1206

On 8 October 2021, the Federal Court of Australia handed down its decision on the second test case in Australia on business interruption response to COVID-19-related claims. Unlike the first test case,[1] the decision largely went the insurers’ way. Crucially, it also reached a very different conclusion from that reached by the United Kingdom Supreme Court in FCA v Arch UKSC Arch[2] in that country’s test case.

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Court dismisses claim by “consumer” for damage caused by fire to yacht

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Court dismisses claim by “consumer” for damage caused by fire to yacht

Tregidga v Pasma Holdings Pty Limited [2021] FCA 721

The Federal Court of Australia has recently considered and dismissed a claim against contractors carrying out electrical repairs on a yacht for fire damage. The legal basis for the decision and the reasoning employed by the court is of relevance to both material damage and liability insurers alike.

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A major victory for James Hardie:  No liability for Harditex cladding

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A major victory for James Hardie:  No liability for Harditex cladding

A major victory for James Hardie: No liability for Harditex cladding

Cridge and Unwin v Studorp Limited; Fowler and Woodhead v Studorp Limited and James Hardie New Zealand Limited [2021] NZHC 2077

The High Court has recently ruled against 144 Harditex-clad homeowners in their claim against James Hardie. The homeowners claimed, but did not establish, that the Harditex cladding was a cause of the weathertightness issues in their homes and that James Hardie breached its duty of care to them. The homeowners also failed to prove that James Hardie had engaged in misleading or deceptive conduct under the Fair Trading Act.

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Focus on indemnity: insuring the careless, reckless or wilful insured

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Focus on indemnity: insuring the careless, reckless or wilful insured

It is commonplace for insurance policies to include an exclusion for deliberate or wilful acts, or a condition precedent that an insured must exercise ‘all reasonable care’. Such clauses intend to incorporate into the policy a requirement for a certain standard of behaviour by the insured: failure to meet that standard renders the insured uninsured.

Two recent Supreme Court decisions from Victoria, Australia, and the United Kingdom have highlighted that the clauses will be construed in light of the commercial purpose of a policy, which presumes that foolish behaviour is intended to be insured. The facts of these cases are useful illustrations of this principle.

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Focus on health and safety: Reparation for emotional harm – what is relevant and who is entitled to it?

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Focus on health and safety: Reparation for emotional harm – what is relevant and who is entitled to it?

Ocean Fisheries Limited v Maritime New Zealand [2021] NZHC 2083

The High Court has recently dismissed Ocean Fisheries’ appeal against the amount of reparation for emotional harm imposed by the District Court following the death of three crew members of the Jubilee when it sank in 2015. The Court also allowed Maritime NZ’s cross-appeal against the District Court’s decision not to order emotional harm reparation be paid to a sister of one of the crew members.
The decision extensively considers the nature of the courts’ jurisdiction to order reparation including the quantum of such orders, who is entitled to an order, and the consequences of any voluntary payments.

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Special Report: A watertight weathertightness exclusion?

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Special Report: A watertight weathertightness exclusion?

Napier City Council v Local Government Mutual Funds Trustee [2021] NZHC 1477

In November 2018, we reported on the High Court decision of Hinton J in respect of an application by Local Government Mutual Funds Trustee (Riskpool) that a claim by Napier City Council be struck out. Riskpool had sought to strike out the Council’s claim on the basis that it had no tenable claim for indemnity as the plain meaning of the policy’s weathertightness exclusion clause (Exclusion) was that a “Claim” was excluded in its entirety if it was tainted by a weathertight defect.

Neither the High Court nor the Court of Appeal were prepared to strike out the Council’s application at an interlocutory stage. As a result, the proceeding returned to the High Court for a full hearing before Grice J in July and August 2020. In a lengthy decision handed down at the end of June 2021, Grice J found in favour of Riskpool and held that both weathertightness and non-weathertightness defects were caught by the Exclusion.

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The limits of fiduciary duties

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The limits of fiduciary duties

Claims Resolution Services Ltd v Pfisterer [2021] NZHC 1088

This proceeding arises out of a claim by Claims Resolution Services (Claims Resolution) against Ms Pfisterer for fees owing, for $93,700 (which included the legal fees paid to Grant Shand Barristers & Solicitors (GSBS)), for services it provided to assist her in resolving her insurance claim against EQC and insurance companies. Ms Pfisterer counter-claimed a breach of fiduciary duty against both Claims Resolution and GSBS, amongst other claims, and argued that no money was owing. The High Court found against most of her claims, as there were no conflict or loyalty issues at stake.

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The end of the Feltex litigation

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The end of the Feltex litigation

Houghton v Saunders [2021] NZSC 38

A recent decision by the Supreme Court has brought an end to a long-running saga through the New Zealand courts. Commenced in 2008, a class action suit of some 3,600 shareholders has rolled on against the directors of Feltex Carpets Limited (Feltex) and its (former) private equity owner, Credit Suisse, for thirteen years.

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Contribution claim against third parties for negligence not barred by the 10-year longstop period in the Building Act

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Contribution claim against third parties for negligence not barred by the 10-year longstop period in the Building Act

BNZ Branch Properties Limited v Wellington City Council [2021] NZHC 1058

The High Court has recently ruled that a contribution claim by a defendant against third party engineers was not time-barred by the 10-year longstop period in the Building Act 2004.

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Location of insurer imperative to s 9 LRA claim

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Location of insurer imperative to s 9 LRA claim

Livingstone v CBL Corporation Ltd (in liq) [2021] NZHC 755

The High Court has recently issued a decision in the CBL litigation which concerned the territorial ‘location’ of a charge under s 9 of the Law Reform Act 1936 (the LRA). In so doing, the Court reinforced the necessity of using the correct procedure for any jurisdictional challenge.

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Terms of contracts prevail over rights of subrogation

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Terms of contracts prevail over rights of subrogation

The law has long recognised that where an insurer has indemnified an insured for loss caused by a third party, the insurer can sue the third party in the insured’s name to recover the amount paid. However, two recent UK decisions have discussed the question of when the terms of a contract entered into by the insured might impact on rights of recovery.

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