High Court confirms direct right against third party's insurer

4 March 2016

INTRODUCTION

The High Court of Australia has unanimously held that third party claimants can join the insurer of an insolvent insured defendant to proceedings, to seek a declaration that the insurer is liable to indemnify the defendant.
 
In September 2015, we highlighted the emergence of declaratory relief as an alternative method for liquidators, companies and individuals to pursue direct action against another party's insurer to secure payment of its claim against that other party.
 
The decision in CGU v Blakeley1 now confirms that courts have jurisdiction to grant declaratory relief in favour of a third party to the contract of insurance, where the insurer has refused to indemnify an insolvent insured.
 
The decision marks a departure from the general principle of privity of contract and guarantees greater rights for third parties in the context of insurance litigation.

Background to the lower court decisions

In April 2013 the liquidators of Akron Roads commenced proceedings against its former directors for insolvent trading. They also proceeded against Crewe Sharp Pty Limited (and its director, Trevor Crewe), a management consulting company which the liquidators alleged had acted as a shadow director (Insolvency Proceedings).
 
Crewe Sharp subsequently entered into voluntary liquidation. During the course of public examinations, the liquidators of Akron Roads became aware of policies of insurance, issued by CGU, under which Crewe Sharp (and Trevor Crewe) were insured. However, CGU had denied indemnity for the Insolvency Proceedings.
 
By way of interlocutory process, the liquidators of Akron Roads made an application to join CGU as a defendant to the Insolvency Proceedings. The liquidators claimed that Akron Roads had a real interest in the determination of CGU's liability to indemnify the insureds. That real interest was established by s 562 Corporations Act, which would afford priority to the liquidators in respect of any insurance proceeds payable by the insurer to Crewe or Crewe Sharp.
 
Akron Roads was not a party to the insurance contract, and no insured had sought to join CGU to the proceedings. Nonetheless, Judd J allowed the joinder of CGU, noting that the claimants satisfied the three elements required to enable declaratory relief:

  • that there was a justiciable controversy over which the court could adjudicate;
  • that the third party could demonstrate a real interest in the matter; and
  • that there was utility in the court granting the relief.

CGU appealed to the Victorian Court of Appeal on the basis that the court lacked jurisdiction to grant relief in favour of a third party which was not a party to the contract of insurance. The appeal was dismissed and special leave was subsequently granted to appeal to the High Court.

The High Court's Decision

CGU argued that s 562 did not create an entitlement for third parties to seek a declaration in respect of a contract to which they were not a party. The insurer submitted that "courts have no jurisdiction at the suit of a stranger to grant declaratory relief as to the meaning of and effect of a private contract between parties who will not pursue any claim relating to rights or duties under that contract"2.
 
In a joint judgment, French CJ, Kiefel, Bell and Keane JJ dismissed CGU's argument and affirmed that there was a justiciable controversy over which the court could adjudicate. The majority acknowledged that if it was established that CGU was liable to indemnify the insureds, and if the liquidators were successful in their claims against Crewe Sharp and Crewe, the insurance moneys would have been payable to the liquidators under s 562. It was held that:

  • the liquidators' claim for relief under s 52 was within the subject matter of federal jurisdiction, and the Supreme Court had federal jurisdiction to grant the relief sought: and
  • the liquidators had established a 'real interest' on behalf of the third party claimant.

In a separate judgment, Nettle J also dismissed the appeal. His Honour noted that the liquidators of Akron Roads could not be considered 'outsiders' to the contract in any real sense, given that they would be the beneficiaries of any insurance moneys under the policy.

Conclusion

The decision in CGU v Blakeley highlights the increased exposure of insurers to third parties in the context of insolvency and insurance litigation. It demonstrates that insurers may be held directly accountable to third party claimants and cannot rely upon the doctrine of privity to resist being joined to proceedings.

1 [2016] HCA 2
2 [2016] HCA 2 at [59]

Louise Cantrill

I provide solutions that matter to client success through collaboration, innovation and excellence.

Louise Cantrill Partner

Louise has specialised in liability litigation and insurance advice since 1996, combining technical excellence with a commercial approach to deliver client focused outcomes. She is highly regarded by her insurer and insured clients (including government agencies, corporates and self-insureds) across a wide range of claims litigation and technical insurance advice.

Louise is highly regarded for both her insurance advisory work with insurer, government and corporate clients, and her claims expertise in the areas of professional negligence (including medical, financial services and construction) and directors & officers.

Louise manages civil matters and appears at Coronials across a wide range of professional negligence and directors and officers claims, including catastrophic injury, multi-party, complex commercial, and high profile claims.

Louise's advisory practice focuses on policy interpretation and multi-contract transactional advice. She advises on policy interpretation and coverage, including multilayer programmes and re-insurance issues. Her insurer clients seek her out for policy wording reviews.

Louise's clients include NSW Ministry of Health, Transport for NSW, W.R. Berkley Insurance Australia, Allied World Assurance Company, Macquarie Bank, Insurance Council of Australia, Sydney Water Corporation, Westfield, PPB Advisory and McGrathNicol.

One of her career highlights was advising Transport for NSW on insurance issues arising from the 'fixing the trains' project, which was one of the most significant  corporate and operational restructures in Australia. This included transactional advice and drafting as well as policy analysis and negotiation.

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Craig Ensor Partner

Craig has over 15 years' experience in banking, restructuring, insolvency and commercial litigation, and is recognised by his clients and peers as a leading practitioner in all aspects of banking and insolvency law.

Craig has advised Australia's leading banks on numerous corporate collapses, and has acted for voluntary administrators, liquidators, provisional liquidators and receivers and managers in many high-profile corporate insolvencies.

Craig also has extensive experience in bank related litigation involving secured and unsecured debt recovery, cheque conversion, fraud and unconscionable conduct claims and significant experience in breach of director duty litigation. He has acted for secured creditors in respect of financial ombudsman complaints.

Craig regularly presents to banking and accounting clients on legal issues and various aspects of banking and insolvency law and is published in the Australian Insolvency Journal.

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Mark Hilton

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Mark Hilton Partner

Mark specialises in banking recovery, including all forms of consumer and corporate recovery and insolvency. He has acted for banks and other financial institutions, receivers, liquidators and administrators for over 28 years.

Mark is a leading insolvency lawyer who has been involved in some of Australia's largest and most complex insolvency matters over the past decade.

He is known for his solid relationships with Australia's Big 4 Banks, as well as his expertise in recovery and enforcement, and litigation and dispute resolution.

Clients call upon Mark for his industry knowledge, achieved from being exposed to businesses across a spectrum of industries such as aged care, banking and financial services, retail, property development, manufacturing, pharmaceutical and infrastructure.

His background in commercial litigation has provided a basis for a substantial practice involving the recovery of loss associated with negligent valuations in connection with securitised loans.

Mark's willingness to embrace innovation is, among other things, evidenced by his coordination of the establishment of recovery extranets to assist financial institutions to monitor the status of recovery and enforcement action on secured and unsecured lending transactions.

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Claudine Salameh Partner

Claudine has over 15 years' experience dealing with legal issues in the financial services sector.

She is a banking and insolvency litigator and regulatory expert. She acts for the major Australian financial institutions in matters involving customer disputes and litigation, fraud, regulatory and compliance issues, regulatory investigations, inquiries and enforcement matters, security enforcement and insolvency litigation. She also acts for insolvency practitioners in formal receiverships, voluntary administrations and liquidations.

Claudine is well known for her ability to manage risks posed by litigation and regulatory inquiries and investigations. She is particularly attuned to reputational and business risks. She is highly strategic and creative and is recognised by her clients for being able to achieve the perfect balance between legal arguments and commercial and practical outcomes.

Claudine has been instrumental in working with clients to provide insights into the field of behavioural economics, which over the past few years, has been of interest to policy makers and regulators as a tool to engage in 'choice architecture'. On a practical level, Claudine has worked closely with clients to design approaches to customer engagement that make use of behavioural insights.   

Claudine is an expert in the conduct of review and remediation programs and provided assistance to the regulator, by way of submissions and her involvement in an industry working group, on ASIC's regulatory guide on review and remediation programs.

Claudine is very familiar with ASIC's powers to obtain documents and information from financial institutions and is called upon by financial institutions to provide assistance in these matters. She has a style that is conducive to having a fruitful dialogue with both the regulator and the various stakeholders within a financial institution.

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Angela Tan

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Angela Tan Special Counsel

Angela has extensive experience as an insurance lawyer. In addition to being a highly experienced litigator and negotiator, she routinely provides advice on policy interpretation and coverage issues, policy drafting and policy review for a wide range of corporate clients, government agencies, insureds and insurers.

She is particularly experienced in professional indemnity matters including directors and officers, insurance brokers, accountants and financial advisers, engineers, solicitors and barristers, healthcare professionals, real estate agents, project directors, valuers, conveyancers and professionals in the building industry.

She advised the insurers of former directors and officers of FAI Insurance in criminal proceedings brought by ASIC for alleged offences under the Corporations Act. This involved taking a matter to the High Court, which decision led to industry change to policy wording on the advance payment of defence costs in directors' and officers' insurance.

Angela is also experienced in reinsurance. One of her career highlights was acting in the first ever successful application under s562A(4) of the Corporations Act to cut through the contractual relationship between an insolvent insurer and its reinsurer to obtain access to reinsurance monies.

Her insurance advisory work includes identifying potential gaps in cover, suggesting changes to policy wording, liaising with insurance brokers and insurers and preparing insurance clauses for contracts.

Her experience extends to public and product liability, property, crime, environmental risk, employment practices and other specialist insurance. She is also experienced in multilayer primary and excess policy programmes.

Angela also advises on privacy issues, including the defence of investigations by the Office of the Australian Information Commissioner, recent changes to privacy law and preparing privacy policies and collection statements.

Angela has practised law and conducted a broad range of litigation in New South Wales, South Australia and Queensland.

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