Recent Cases

XL Insurance Co SE v BNY Trust Company of Australia Limited [2019] NSWCA 215 (02 September 2019) (Bell P at [1], Gleeson JA at [2], Emmett AJA at [121])


CIVIL PROCEDURE – appeal from determination of separate questions – where concession in agreed facts as to causation of loss suffered by claimant against the insureds – whether primary judge erred in attaching significance to appellant’s concession when deciding construction of contract of insurance

CONTRACTS – construction – proper construction of a contract of insurance – professional indemnity policy for property valuer – contract comprised in standard policy wording, schedule and endorsements – where exclusion clause in endorsement for valuations undertaken for specified category of lenders – where literal or grammatical meaning must be evaluated against the text, context and purpose of the contract – whether ambiguity arising from requisite causal nexus between subject matter of the exclusion clause and the loss – business commonsense approach to construction – exclusion clause to be interpreted according to its natural and ordinary meaning – where absence of ambiguity precludes recourse to the contra proferentem rule – whether insurer entitled to deny indemnity and refuse to pay defence costs

JUDGMENTS AND ORDERS – court’s powers – hypothetical questions – utility of declaration as to insurer’s liability to indemnify in absence of determination of insured’s liability to claimant – form of declaration – whether too wide – whether negative declaration appropriate