Insurance in MOtion – Cover and Exclusions for Employment Breach Claim under Management Liability Policy

In the recent decision of Southern Classic Group Pty Ltd t/as Southern Classic Cars v Arch Underwriting at Lloyd’s Ltd on behalf of Syndicate 2012 [2018] NSWSC 1272, the Supreme Court of New South Wales looked at the extent of an insured’s cover under a management liability policy for liability arising from a claim by
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Insurance in MOtion – Assisted dying in Victoria

Last November, Victoria passed the Voluntary Assisted Dying Act, becoming the first Australian State to legalise assisted dying. The Act comes into force on 19 June 2019. But how can a person lawfully access the regime? This is a complex piece of legislation, with 143 sections and including 68 safeguards to prevent misuse. To access
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Insurance in MOtion – Privacy and sexual harassment impose increased D & O risks

Increased risks for directors and officers are not just arising from the external environment- companies need to manage the internal risks arising from privacy breaches and sexual misconduct. This has ramifications for corporates and their insurers. Management liability specialist Kevin LaCroix has pointed to US trends as forewarning of what can be expected in the
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Insurance in MOtion – NSW Court of Appeal examines liability of developers and builders for defects in design under the Home Building Act 1989

On 3 August 2018, the NSW Court of Appeal handed down judgment in The Owners Strata Plan No 66375 v King [2018] NSWCA 170. The decision examines the extent to which a trial judge should have drawn an inference that a contract had been signed by the developers from the surrounding facts and examines the
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Insurance in MOtion – Mills Oakley in successful public liability defence

A decision of the District Court of Queensland on 29 June 2018 has reinforced the principle that a landlord’s duty of care (in this case to the tenant) is only to take reasonable care to ensure that at the start of a tenancy the premises are fit for the tenant to live in and/or in
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Insurance in MOtion – When can an insurer refuse to advance payment of defence costs?

In the recent case of Onley v Catlin Syndicate Ltd as the Underwriting Member of Lloyd’s Syndicate 2003 [2018] FCAFC 119 the Full Court of the Federal Court of Australia permitted an insurer to refuse to advance defence costs, even it had agreed an Automatic Extension in the Policy providing for payment of Defence Costs which required
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Insurance in MOtion – Government review of aviation insurance and liability framework

The Federal government is currently seeking submissions in respect of the review being undertaken into Civil Aviation Carriers’ Liability. The discussion paper sent out for comment focuses on three primary issues being: Updating liability thresholds under the Civil Aviation (Carriers’ Liability) Act 1959 (‘CACL’) Reviewing the Civil Aviation (Carriers’ Liability) Regulations 1991; and Reviewing current insurance exclusions, particularly War
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Insurance in MOtion – Notifiable data breaches – statistics for 1 April to 30 June 2018

The first full quarter of notifications since the mandatory data breach reporting regime commenced on 22 February 2018 are now available. A total of 242 reports were made, with 59% involving malicious or criminal attacks. There was a steady increase in notifications over the three months, with 65 reports in April and up to 90
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Insurance in MOtion – When strict compliance does not mean strict – WFI Insurance v Manitowoq Platinum

Insurers can deny indemnity for an insured’s failure to comply with a condition of policy, unless that condition goes to the heart of the risk the insurer has agreed to indemnify. In WFI Insurance Ltd v Manitowoq Platinum Pty Ltd [2018], the insurer was entitled to deny indemnity on the basis that the plumbing works the subject
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Insurance in MOtion – The Age of the Pension – recovery of Lost Pension Benefits

In a landmark decision, the High Court has confirmed the extent to which pensions are recoverable for “lost” years as a result of personal injury which has reduced life expectancy – Amaca Pty Ltd v Latz [2017] SASCFC 145. In short, the High Court held that the plaintiff is only entitled to recover the pension available
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Insurance in MOtion – Australian Business with the EU – does the General Data Protection Regulation (GDPR) apply?

The European Union General Data Protection Regulation (GDPR) came into force on 25 May 2018, and it has a long reach. Many Australian businesses may think they are not caught, or that their compliance with Australian Privacy Principles will be enough. But if you are wrong, the consequences could be significant – penalties of up
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Insurance in MOtion – Extending Unfair Contract Terms to Insurance Contracts

As foreshadowed in late 2017, the Commonwealth Government is keen to progress plans to apply the unfair contract term (UCT) protections to insurance contracts. It has released a Proposals Paper for discussion, with a deadline of 24 August 2018 to provide responses. The Proposal Paper outlines a model for applying UCT to standard form insurance
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Australian Business with the EU – does the General Data Protection Regulation apply to you?

By Louise Cantrill, Partner The European Union General Data Protection Regulation (GDPR) came into force on 25 May 2018, and it has a long reach. Many Australian businesses may think they are not caught, or that their compliance with Australian Privacy Principles will be enough. But if you are wrong, the consequences could be significant 
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Containers Overboard! How can I Efficiently Protect my Rights – MV “YM Efficiency”

By Maurice Lynch, Senior Associate, and Tom Mangan, Law Graduate In the age of mega container ships capable of carrying thousands of containers, the potential for incidents affecting large numbers of these containers increases. In the past four years alone, Australian freight forwarders and consignees have been impacted by container stow collapses on three large
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Insurance in MOtion – Court orders Magistrates’ Court to think again

 In the matter of Roehlen v. Mikhail [2018] VSC 121 the Supreme Court upheld an appeal by Benjamin Roehlen and his hire car provider Right2Drive and remitted the case back to the Magistrates’ Court for determination. The Magistrates’ Court had earlier found that the rental contract between Mr Roehlen and Right2Drive was void for uncertainty. On the
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Building Products (Safety) Act 2017 Overview

Mills Oakley recently presented a paper with an overview of the Building Products (Safety) Act 2017 (NSW) to the Australian Construction Law Discussion Group, which His Honour Justice McDougall of the NSW Supreme Court also attended and addressed. A copy of the paper can be found here. This article is of a general, informational nature.
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Insurance in MOtion – I have settled the claim – Can I enforce an indemnity to recover the settlement?

By Maurice Lynch, Senior Associate Many persons and entities consider that a contractual indemnity gives them carte blanche to settle claims made against them by third parties with no monetary exposure. Whether or not this is actually the case will depend upon whether that settlement was reasonable, and whether the indemnity clause when properly constructed
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Insurance in MOtion – Insurers should keep a watchful eye on the Banking Royal Commission

The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry this week will finish up its first round of hearings, which has lasted from 13-23 March 2018. Insurers should be aware that a significant focus of the first round of hearings was add on insurance products, sold in connection with home and
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Insurance in MOtion – APRA to introduce cyber security standards

Industry focus on cyber risk continues with APRA‘s release of a consultation paper which aims to introduce the first prudential standards to address cyber security and governance. While acknowledging no APRA regulated entity had yet suffered a material loss due to a cyber incident, executive board member Geoff Summerhayes believes it is only a matter
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Insurance in MOtion – Court orders Superannuation Complaints Tribunal to think again

In Sharma v LGSS Pty Ltd [2018] FCA 167 the Federal Court upheld Mr Sharma’s appeal and remitted the case back to the Superannuation Complaints Tribunal to decide it ‘according to law’. The Tribunal had earlier found that the insurer’s decision, to avoid policies for TPD and IP cover, was fair and reasonable. Mr Sharma took out
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Insurance in MOtion – You do the crime, you pay the fine – personally

The High Court has held that a union was not able to indemnify its member for a fine imposed on the member, on the basis that the member should be personally responsible to pay it (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3). While not directly on point, the case
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Insurance in MOtion – NSW introduces sweeping changes to Home Building Compensation scheme

On 1 January 2018 a series of significant reforms were introduced to the Home Building Compensation (also known as Builders Warranty Insurance) scheme in NSW. The reforms have opened the door to new insurers and other providers to enter the scheme as well as enabling significantly increased levels of cover for homeowners. The Home Building
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Insurance in MOtion – Don’t say it! Waiver of privilege by partial disclosure

In Ford Motor Company of Australia Limited v Tallevine Pty Ltd (as trustee for the Thornleigh Trading Trust) [2018] NSWSC 136 the NSW Court of Appeal has reminded us again to resist the urge to refer to legal advice unless we are prepared to let the other party read the whole document. The Court of
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Insurance in MOtion – Court confirms proper construction of ss4(1) and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW

In Mrdajl v Southern Cross Constructions (NSW) Pty Ltd (In Liq) [2018] NSWSC 161 the Supreme Court of NSW has refused an application by the plaintiff to join an insurer to the proceedings. Justice Walton did not consider that the plaintiff had sufficient evidence to establish the existence of a policy of insurance. The case
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Insurance in MOtion – Court denies exclusion applies for personal injury

In Pacific International Insurance Co Ltd v Walsh [2018] NSWCA 9, the NSW Court of Appeal has prevented the insurer from relying on a personal injury/property damage exclusion to deny indemnity to its insured. No doubt the insurer in this matter thought the exclusion in its professional indemnity policy was clear – no cover for
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Insurance in MOtion – Mandatory Reporting of Data Breaches

A reminder that on 22 February 2018, the Commonwealth Government passed into law the Privacy Amendment (Notifiable Data Breaches) Act 2017 which creates a notifiable data breaches (NDB) scheme nationally. Agencies and organisations are obliged to notify individuals whose personal information is involved in a data breach that is likely to result in “serious harm”.
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Insurance in MOtion – Modernisation of WA Workers’ Compensation Scheme

On 15 February 2018 the Honorable Bill Johnston MLA, Minister for Commerce and Industrial Relations released a media statement announcing the State Government’s intention to commence drafting a Bill to modernise the Workers’ Compensation & Injury Management Act 1981 (WA). The Bill will be based on recommendations flowing from the extensive review of the Scheme
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Insurance in MOtion – Lloyd’s innovation gathers pace

Having invested time and money in the London Market Target Operating Model (TOM) program, Lloyd’s is forging ahead with its electronic placing platform, PPL. Having invested time and money in the London Market Target Operating Model (TOM) program, Lloyd’s is forging ahead with its electronic placing platform, PPL. The platform has proven its worth most
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New era of Competition Laws in Australia – what’s in it for me?

By Frazer Hunt, Partner The Competition and Consumer Amendment (Competition Policy Review) Bill passed Parliament last week, following the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 (Cth) which was passed in August 2017, as a result of various recommendations from the 2015 Harper Competition Policy Review. The ACCC hopes that these legislation
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The First Unfair Contract Terms case has been delivered – ACCC trashes JJ Richards’ standard form contract terms

By Frazer Hunt, Partner On 13 October 2017, the Federal Court of Australia delivered the first judgement* under the unfair contract terms provisions of the Australian Consumer Law, declaring various clauses in JJ Richards & Sons’ standard form contracts for waste management services to be unfair and void.   This was the first court case brought
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The elephant in the room – a cautionary tale for freight forwarders

By Henry Holland, Lawyer and Frazer Hunt, Partner The District Court of New South Wales has ruled that a freight forwarder engaged in misleading or deceptive conduct by issuing house bills of lading with all the hallmarks of negotiable bills of lading where the ocean carriers had issued negotiable bills of lading for the same
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Fiaese Tuimaseve v Wesfarmers Ltd – Melbourne Magistrates Court – 7 September 2016

By Stuart Eustice, Partner Hot on the heels of Jarvis v Salvation Army [2016] VSCA 175, Magistrate Ginnane has been asked to apply the Court of Appeals reasoning from Jarvis in determining the application of s.114(2A) Accident Compensation Act 1985. This decision illustrates further the Courts likely pathway in future decisions. Background Tuimaseve was a
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Hanjin Shipping – What Should I do with my Container?

Last week’s application by Hanjin Shipping for receivership and bankruptcy protection will create a number of headaches for cargo interests who have consignments either booked for shipment or already shipped on Hanjin Shipping’s vessels. To read the complete article, click here. Contact Mills Oakley   Frazer Hunt | Partner T: +61 2 8035 7972 E:  fhunt@millsoakley.com.au
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Right of Stoppage – It Sounds Simple, Right? Not for Freight Forwarders

By Maurice Lynch, Senior Associate A right of stoppage is the right of an unpaid seller to stop goods in transit that they have sold to a purchaser, and retain them until payment of the purchase price. For an unpaid seller to exercise a right of stoppage it must, prior to possession of the goods
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A Seller’s Stitch Up! Is there Marine Insurance Cover for the Purchaser?

By Maurice Lynch In contracts for the sale of goods, there is often a seller and a purchaser who are both based in different countries, have not previously met each other, and have not had an extensive prior course of dealings. Transactions taking place in these circumstances are ripe for the seller to defraud the
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5 Practical Issues for the Home Building Changes Commencing 1 December 2014

There has been much concern amongst strata lawyers, strata managers and the media about impending changes to the Home Building Act 1989 (NSW) (“the Act”), and whether those changes will strip rights away from lot owners and owners corporations. This circular is intended to clarify what you should or should not worry about, so that
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Victorian Court of Appeal determines that building matters must be commenced within 10 years in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165

The Victorian Court of Appeal has recently clarified the interpretation of section 134 of the Building Act 1993 (Vic) in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 and has determined that section 134 creates a separate limitation regime of 10 years for all building actions, including those arising
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Council Represents Lot Owners in Urgent Dispute

The recent case of Burwood Council v Ralan Burwood Pty Ltd [2014] NSWCA 179 provided an interesting set of circumstances where a Council acted to notify (and represent) all lot owners on an urgent basis. The Council sought a declaration that the Construction Certificate issued by a certifier was invalid because the design and construction
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