Indemnity focus: meaning of corrosion and resultant physical damage

/
Indemnity focus: meaning of corrosion and resultant physical damage

MDS Inc v Factory Mutual Insurance Co [2021] ONCA 594

A corrosion exclusion is a common feature of many policies. In this article, we look at a Canadian decision which held that a corrosion exclusion applied to “unanticipated” corrosion at a nuclear facility, leading to a leak, which in turn led to a shutdown. But the shutdown was not resultant physical damage, so that there was no cover for the losses which resulted.

Read More

A return to ‘normal’ - Napier City Council v Local Government Mutual Funds overturned on appeal

/
A return to ‘normal’ - Napier City Council v Local Government Mutual Funds overturned on appeal

In August last year we reported on the High Court decision of Grice J in Napier City Council v Local Government Mutual Funds Trustee Limited (Riskpool). In that decision, Her Honour held that the Council was not indemnified under its professional indemnity insurance policy with Riskpool as the claim against it was in respect of both weathertightness and non-weathertightness defects. Consequently, the policy’s weathertightness exclusion clause applied to the entire claim. At the time, we commented that the decision may have come as a surprise to many in the insurance industry as it went against the approach taken by many insurers, which was to differentiate between weathertightness and non-weathertightness defects when considering indemnity. It was only when there was a defect which was caused or contributed to by an excluded peril that was excluded from cover.

Read More

Get to know Kaartik

/
Get to know Kaartik

Solicitor Kaartik Achari graduated in January 2021 with a Bachelor of Laws (First Class Honours). Prior to that, he completed a Bachelor of Commerce majoring in Marketing and Management. He was admitted to the Bar in August 2021.

Before joining Fee Langstone in 2022, Kaartik worked within the dispute resolution team of a specialist employment relations firm. Kaartik speaks fluent Hindi and worked as a Court Interpreter whilst at university. Since

Read More

How to avoid the pitfalls and blind spots of Conflicts of Interests for Accountants

/
How to avoid the pitfalls and blind spots of Conflicts of Interests for Accountants

Managing potential conflicts of interest and threats to objectivity is a fundamental requirement for chartered accountants and assurance practitioners in complying with their professional and ethical obligations. But all too often identifying and addressing conflicts of interest can be a ‘blind spot’, regardless of a practitioner’s level of experience.

Read More

How to navigate a professional disciplinary complaint as an Accountant or Auditor

/
How to navigate a professional disciplinary complaint as an Accountant or Auditor

As a qualified accountant or auditor, you are professionally bound by a Code of Ethics and professional standards that best protect and serve your clients and the public interest. But things can still happen, and it may lead to a client or third party making a professional complaint against you to Chartered Accountants Australia and New Zealand (CA ANZ), specifically NZICA.

Read More

NSW to require psychosocial risks to be managed in the workplace

/

Double-click to edit...

NSW has introduced amendments to its health and safety legislation, which from 1 October 2022 requires workplaces to manage psychosocial risks. WorkSafe New Zealand has recognised these risks and has good practice guidelines in place which are summarised in these slides. We will continue to keep a watching brief on this situation and how it will evolve in New Zealand.

See - https://legislation.nsw.gov.au/view/pdf/asmade/sl-2022-551

Limitation:  the importance of searching old paper files

/
Limitation:  the importance of searching old paper files

Daisley v Whangarei District Council [2022] NZHC 1372

Decisions which consider whether a defendant had a continuing duty, and the implications of that for the purposes of a limitation defence do not arise often. The High Court has recently issued such a decision, in a long-running (and high-value) litigation against a local authority. Unfortunately for the Council, a land use consent, going back to 1988, was on their paper files but not recorded in the computer files. It led to the Council overlooking the land use consent, and then prosecuting a landowner for operating a quarry in breach of a resource consent. Ultimately, it also led to the Council being liable in damages to the landowner for in excess of $4m.

Read More

Multi-disciplinary firms:  the scope of legal professional privilege

/
Multi-disciplinary firms:  the scope of legal professional privilege

Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278

In late March 2022, after a five-day virtual hearing conducted using Microsoft Teams, the Federal Court of Australia delivered a highly anticipated judgment in a long-running privilege dispute between the Commissioner of Taxation (the Commissioner) and PricewaterhouseCoopers Australia (PwC) and its clients, Flora Green Pty Limited, and JBS Australia Pty Limited, finding that only some of the documents for which PwC claimed legal professional privilege (privilege) were accurately withheld.

Read More

Getting to know Michelle Kilham

/
Getting to know Michelle Kilham

Michelle is an experienced commercial litigator who acts on a broad range of commercial disputes. She commenced practice in 2011 and has acted for a variety of individuals and entities including large corporates, banks, insolvency practitioners and insurers. Michelle has particular expertise in disputes involving professional liability, restructuring and insolvency, company law, trusts and property.

Read More

Tenant’s exoneration provisions of the Property Law Act 2007 extend beyond the leased premises

/
Tenant’s exoneration provisions of the Property Law Act 2007 extend beyond the leased premises

Inlet Storage Limited v United Movers Limited [2021] NZDC 23513[1]

Sections 268 and 269 of the Property Law Act 2007 exonerate tenants of property from liability for damage caused by a range of perils, including fire and flood, where the landlord has an insurance policy that covers the causative peril. Where that is the case, the tenant cannot be required to meet the costs of making good the destruction or damage, or to pay damages “in respect of” the same. The District Court recently considered the application of these sections beyond the leased premises to neighbouring properties.

Read More

Ch-ch-changes! Reforming insurance law – draft Insurance Contracts Bill released for consultation

/
Ch-ch-changes! Reforming insurance law – draft Insurance Contracts Bill released for consultation

Significant changes to New Zealand’s insurance laws are in the pipeline. Following public consultation on proposed changes in 2018 and 2019, Cabinet has made policy decisions on the key changes which are to occur to insurance law. Last month, MBIE released an exposure draft of the new Insurance Contracts Bill which aims to brings New Zealand closer into line with the policyholder-friendly changes which have already occurred in Australia and the United Kingdom. While further public consultation is invited, it appears much of the change has been already been decided.

Read More

Russian cyber attack not “warlike” – clarifying the scope of the war exclusion

/
Russian cyber attack not “warlike” – clarifying the scope of the war exclusion

Merck & Co v Ace American Insurance Co No: UNN-L-2682-18

It is not often that courts have occasion to look at the construction of the ‘war risks’ exclusion. In a novel argument, the insurer relied on the war risks exclusion to deny cover to an insured for losses arising from a cyber attack. The Superior Court of New Jersey held that it did not apply. In doing so, it provided useful clarification of the meaning of the exclusion.

Read More

Indemnity focus:  the meaning of ‘control’

/
Indemnity focus:  the meaning of ‘control’

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.

Read More

Health & Safety prosecution:  when will a defendant be ‘reckless’?  

/
Health & Safety prosecution:  when will a defendant be ‘reckless’?  

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 More

Focus on indemnity: Insurance Claim Time Barred – Clock Started Ticking Immediately

/
Focus on indemnity: Insurance Claim Time Barred – Clock Started Ticking Immediately

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 More

Get to know Edward

/
Get to know Edward

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 More