Chambers Shipping 2022 Global Practice Guide
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Indemnity focus: the meaning of ‘control’
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Penfold v The Hollard Insurance Co Pty Ltd [2021] NSWSC 1322
Insurers and brokers are often presented with a difficult fact-specific question to resolve – is property within the physical and legal control of an insured? An insured’s legal responsibility will often turn on this, and so too may its coverage position. In this article we look at a recent Australian decision which held that property owners may have “control” of goods on their property even if they have not charged for storage and have not exercised any power over the goods.
Focus on climate change: the current legal landscape
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With the UN Climate Change Conference (COP26) recently wrapping up in Glasgow, we thought it timely to touch on some of the issues on the horizon for Aotearoa.COP26 is the first major test of the 2015 Paris Agreement, the global pact to keep the earth’s temperature from rising beyond 1.5 degrees of pre-industrial levels
Read MoreHealth & Safety prosecution: when will a defendant be ‘reckless’?
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WorkSafe New Zealand v Waste Management NZ Limited [2021] NZHC 3444
There are few decisions in New Zealand which have looked at what conduct will amount to recklessness in the context of the Health and Safety at Work Act 2015 (the Act). This is why the recent High Court decision, declining WorkSafe’s application for leave to appeal the District Court’s decision, is so important.
Read MoreFocus on indemnity: Insurance Claim Time Barred – Clock Started Ticking Immediately
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Bann Carraig Ltd v Great Lakes Reinsurance (UK) Plc [2021] NIQB 63
This decision from the High Court of Northern Ireland is a cautionary tale for insureds not to delay too long after an insured peril before filing proceedings, and a reminder for insurers to consider potential limitation defences when faced with old claims.
Read MoreGet to know Edward
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Edward joined Fee Langstone last month as a Senior Associate, after time working in both large and boutique practices in Auckland, and in London. He has a broad range of civil litigation experience and has assisted clients in resolving challenges that have included contractual disputes, regulatory prosecutions, insolvency and debt recovery issues, as well as property and trust disputes.
Read MoreTom Pasley a Rising Star
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We are very pleased to announce that our very own Special Counsel Tom Pasley has been named as a NZ Lawyer Rising Star for 2022. The award is in recognition of outstanding “talent and commitment” of lawyers under 35
Read MoreThe Legal 500 Asia Pacific 2022
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The Legal 500 Asia Pacific 2022 edition
We are thrilled to have received our best results ever in the Legal 500 rankings, and thank you to all our clients who participated in the process. We would like to share these results with you: we could not have achieved it without your support.
Chambers Rankings 2022
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We are very pleased to announce that Fee Langstone was ranked as a Band 1 firm for Insurance in the Chambers Asia Pacific Rankings for 2022. Partners Philippa Fee and Pauline Davies were also singled out, with Philippa being named in Band 1 for Insurance and Pauline in Band 2 for Shipping. Thank you to everyone who contributed to the survey and provided feedback.
Read MoreThe pets of FL are feeling festive
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It wouldn't be Christmas without our non-human family members joining in on the fun and feasting. You may recall their starring roles in 2019's Twelve Dogs of Christmas.
This year there may not be a music video but they're still getting into the spirit!
‘Swings and roundabouts’: clarifying the ability to aggregate claims
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The Right Reverend Nicholas Baines, Lord Bishop of Leeds v Dixon Coles & Gill [2021] EWCA Civ 1211
The English Court of Appeal recently considered whether claims brought against a law firm for the systematic fraud of one of its partners should be aggregated for the purposes of the limit of indemnity in the firm’s insurance policy. The English High Court’s judgment, upheld on appeal, was that the claims should not be aggregated and that each attracted a separate limit of indemnity.
Who gets what? Dividing recovery proceeds between insured and insurer
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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.
Clarifying minority shareholder’s buy out rights
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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.
Second Covid test case in Australia favours insurers
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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.
Read MoreCourt dismisses claim by “consumer” for damage caused by fire to yacht
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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.
Read MoreA 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
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.
Read MoreFocus on indemnity: insuring the careless, reckless or wilful insured
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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.
Read MoreFocus on health and safety: Reparation for emotional harm – what is relevant and who is entitled to it?
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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.
