These proceedings concern a claim for professional negligence in the valuation of real estate in Western Australia. The plaintiff Bank of New York Trust Company of Australia, claims that it relied on the valuation when advancing loans of $1,650,000 to a Mr Kennedy and $1,450,000 to a Mr Houghton, for the acquisition of 35 individually-titled self-storage unit facilities that formed part of a strata plan. They both defaulted on their loans, proceedings were brought against them and eventually, BNY attempted, unsuccessfully, to sell the property.
BNY then brought these proceedings against MMJ Real Estate (WA) Pty Ltd, and the two valuers it had previously employed, who were responsible for the valuations. The defendants have brought a cross-claim against their insurer, XL Insurance Company SE. The insurer's defence to the cross-claims depends on the proper construction of the insurance policy.
Davies J ordered that issues raised by the cross-claim be determined separately: BNY Trust Company of Australia Limited v MMJ Real Estate (WA) Pty Ltd [2018] NSWSC 1052. Under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) his Honour ordered that the following matters should be determined separately from, and prior to, the final hearing of the proceedings:
"(a) Whether the cross-defendant (XL) is entitled to decline to:
(i) indemnify the First Defendant/Cross-claimant on the First Cross-claim (MMJ) under Professional Indemnity Insurance Policy No. AU00006350EO16A (the Policy) for any "Loss" (as defined in the Policy) (Loss) incurred by the cross-claimant in respect of the Plaintiffs claim against it in the proceedings; and
(ii) to pay "Defence Costs" (as defined in the Policy) (Defence Costs) in relation to that claim,
by reason of the operation of clause (ix) of Endorsement 1 to the Policy.
(b) Whether XL is entitled to decline to:
(i) indemnify the Second Defendant/Cross-claimant on the Third Cross-claim (Volk) under the Policy for any Loss incurred by Volk in respect of the Plaintiffs claim against him in the proceedings; and
(ii) to pay Defence Costs in relation to that claim,
by reason of the operation of clause (ix) of Endorsement 1 to the Policy.
(c) Whether XL is entitled to decline to:
(i) indemnify the Third Defendant/Cross-claimant on the Second Cross-claim (Hosking) under the Policy for any Loss incurred by the cross-claimant in respect of the Plaintiffs claim against the cross-claimant in the proceedings; and
(ii) to pay Defence Costs in relation to that claim,
by reason of the operation of clause (ix) of Endorsement 1 to the Policy."
BNY Trust Company of Australia Limited v MMJ Real Estate [2018] NSWSC 1938 | Case summary | Zoe
The agreed facts, on which this application also proceeded, were there noted at [20] to be:
"2. The First Defendant/Cross-claimant on the First Cross-claim (MMJ) was at all material times registered as a company for the purposes of the Corporations Act 2001 (Cth) and carried on business as a realtor and property valuer.
3. The Second Defendant/Cross-claimant on the Third Cross-claim (Volk) was at all material times a director of MMJ and a certified practicing property valuer.
4. The Third Defendant/Cross-claimant on the Second Cross-claim (Hosking) was at all material times an employee of MMJ and a certified practising property valuer.
5. The Cross-defendant to each cross-claim (XL) issued a professional indemnity insurance policy, being Policy No. AU00006350EO16A (the Policy), to MMJ for the "Period of Insurance", being the period between 30 June 2016 and 30 June 2017.
6. The Policy consisted of the following documents:
(a) a "policy wording", being the document described as "XL Catlin Professional Indemnity Insurance Misc PI 0515 Policy No. AU00006350EO16A" (the Policy Wording) behind Tab 1 of Exhibit AF-1;
(b) a Policy "Schedule" included with the Policy Wording behind Tab 1 (the Schedule);
(c) various endorsements to the Policy, included with the Policy Wording behind Tab 1, including:
(i) an endorsement to the Policy described as "Endorsement No. 1 Valuers Endorsement 0515 (Modified)" (Endorsement No. 1); and
(ii) a further endorsement to the Policy described as "Endorsement 2 Valuers Definition of Claim Endorsement 0515" (Endorsement No. 2); and
(d) a "Proposal for insurance" completed and signed on behalf of MMJ on 9 June 2016 and submitted to XL on or about that date (the Proposal), a copy of which is behind Tab 2 of Exhibit AF-1.
7. On or about 29 November 2010, the Plaintiff (the Lender) by its agent the Think Tank Group Pty Ltd (the Manager) retained MMJ to provide valuations on the terms set out in the Manager's letters to MMJ dated 29 November 2010 behind Tab 3 of Exhibit AF-1.
8. The Lender entered into two loan agreements, as lender, as follows:
(a) for a facility of up to $1,650,000 in accordance with the terms of an offer made on its behalf and set out in a letter sent by the Manager to Leigh John Kennedy (Kennedy) dated 30 November 2010, a copy of which, together with the "Facility Terms" enclosed with it, is behind Tab 4 of Exhibit AF-1; and
(b) for a facility of up to $1,450,000 in accordance with the terms of an offer made on its behalf and set out in a letter sent by the Manager to Wayne Allan Houghton (Houghton) dated 1 December 2010, together with the "Facility Terms" enclosed with it, is behind Tab 5 of Exhibit AF-1.
9. The Lender is not and has never been, an Authorised Deposit Taking Institution (ADI) supervised by the Australian Prudential Regulation Authority (APRA).
10. On or about 9 December 2010, MMJ produced a valuation report for the Lender, addressed to the Manager in its capacity as agent for the Lender in relation to certain strata lots located at 14A Hurrell Way, Rockingham in Western Australia (the Kennedy Valuation) a copy of which is behind Tab 6 of Exhibit AF-1.
11. On or about 9 December 2010, MMJ produced a further valuation report for the Lender addressed to the Manager in its capacity as agent for the Lender in relation to certain other strata lots located at 14A Hurrell Way, Rockingham in Western Australia (the Houghton Valuation) a copy of which is behind Tab 7 of Exhibit AF-1.
12. On 10 December 2010, MMJ produced a further version of the Houghton Valuation for the Lender and provided it to the Manager in its capacity as agent for the Lender, described as an "updated" version (the Updated Houghton Valuation) a copy of which is behind Tab 8 of Exhibit AF-1.
13. The Kennedy Valuation, the Houghton Valuation and the Updated Houghton Valuation were all prepared and signed on behalf of MMJ by Hosking and reviewed and countersigned by Volk.
14. The Lender commenced the proceedings against MMJ, Volk and Hosking by a Statement of Claim filed on 20 October 2016, a copy of which is behind Tab 9 of Exhibit AF-1.
15. MMJ gave notice of the proceedings to XL in about early November 2016.
16. The loss the subject of the Lender's claim against MMJ, Volk and Hosking was not caused by their failure to incorporate in the valuation reports the subject of the Lender's claim a "Prudent Lender Clause" in the terms set out in Endorsement l(ix) of the Policy."
It was also not in issue that:
1. BNY, while itself a bank, was not and never has been an "Authorised Deposit-Taking Institution" supervised by APRA;
2. the valuations were prepared for BNY, the Commonwealth Bank and Think Tank Group Limited, with only the Commonwealth Bank being such an "Authorised Deposit-Taking Institution";
3. the valuation reports did not include a "prudent lender" clause;
4. the loss which is the subject of the claim was not caused by the absence of that clause in the valuation reports; and
5. but for the absence of a "prudent lender" clause in the valuations, there would be no issue that the claimed loss was covered by the policy.
What is in issue turns on the proper construction of clause (ix) of Endorsement 1 to the Policy, which contains a "prudent lender" clause. It is common ground that this endorsement to what is a standard professional indemnity policy, is essentially an extension of the general exclusions contained in section 5 of the policy, for the particular valuer's work the parties agreed that the policy would cover. It provides:
"The insurer will not be liable to indemnify the Insured for any Loss, settlement or other payment, or pay any Defence Costs or Inquiry Costs, directly or indirectly arising out of, based upon, attributable to or in consequence of:
(ix) any valuation undertaken by, or on behalf of, the Insured for any lender, financier or any other provider of financial security that is not an Authorised Deposit-Taking Institution supervised by the Australian Prudential Regulatory Authority (APRA) unless the following "Prudent Lender Clause" (or a clause with materially the same effect) is included in any such valuation report:
"This valuation is prepared on the assumption that the lender as referred to in the valuation report (and no other) may rely on the valuation for mortgage finance purposes and the lender has complied with its own lending guidelines as well as prudent finance industry lending practices, and has considered all prudent aspects of credit risk for any potential borrower, including the borrower's ability to service and repay any mortgage loan. Further, the valuation is prepared on the assumption that the lender is providing mortgage financing at a conservative and prudent loan to value ratio".
The word "Loss" is defined in the policy to mean:
"7.13 Loss
means compensatory damages and/ or claimant's costs (whether awarded or by settlement with the prior written consent of the Insurer), but shall not include;
(i) civil or criminal fines or penalties imposed by law; or
(ii) punitive, exemplary, multiple or aggravated damages; or
(iii) any amount uninsurable at law; or
(iv) any amount for which the Insured is not legally liable or for which there is no legal recourse to any Insured."
[2]
The issue
In issue is whether the clause (ix) is to be construed as only entitling the insurer to decline indemnity, if it was the absence of the prudent lender clause in the valuation report, which caused the plaintiff's loss.
The insurer's case is that this is not how the clause operates. The defendants contend that if the insurer is correct, also excluded is the risk of loss flowing in this case from the Commonwealth Bank's reliance on the valuation, even though it is an Authorised Deposit-Taking Institution supervised by APRA and the absence of the disputed clause was not causally connected with the losses which it, or the other two lenders, suffered.
That is not accepted by the insurer.
[3]
The parties' cases
The competing cases which the parties advanced by their written submissions can be shortly explained.
The insurer's case was that the endorsement is not ambiguous, providing as it plainly does that liability is excluded in respect of any valuation which does not include the prudent lender provision, which is provided to a lender which is not an "Authorised Deposit-Taking Institution", supervised by APRA. In oral submissions its position was refined.
The defendants' case was also that the endorsement is not ambiguous, but that it only excluded liability when the absence of a prudent lender clause in a valuation provided to a lender which is not an Authorised Deposit-Taking Institution supervised by APRA, caused the loss suffered, that liability is excluded.
[4]
Applicable principles
There was also no issue about the principles which govern the resolution of what lies in issue as to the proper construction of the endorsement to this insurance policy.
Where an insurance company prepares the document, it is bound to make its meaning as clear as possible: Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305; [1920] HCA 64. "A policy of insurance, even one required by statute, is a commercial contract and should be given a businesslike interpretation. Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure": McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 at [22].
The meaning of commercial documents must be determined objectively, their construction being determined by what a reasonable person in the position of the parties would have understood them to mean, which requires consideration both of the text of the documents and also the surrounding circumstances: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22].
If there is ambiguity, resort can also be had to the surrounding circumstances known to the parties: Codelfa Construction Pty Limited v State Rail Authority of NSW (1982) 149 CLR 337 at 352; [1982] HCA 24.
The interpretation of an exclusion clause "is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity.": Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510 [1986] HCA 82.
Where two meanings are open, "it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust": Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350; [1975] HCA 28. Further, in the event of ambiguity it is proper to give a construction "that would avoid irrational consequences that it is unlikely that the parties intended": Distillers Co Bio-chemicals (Australia) Pty Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1 at 11; [1974] HCA 3.
A court may also depart from the "strictly literal meaning of a particular expression to place upon it an alternative construction which is more reasonable and more in accord with the probable intention of the parties if the words will bear that construction.": Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 at 520; [1986] HCA 32.
The contra proferentem rule is one of last resort, however, applying only when ambiguity remains after all other avenues of construction have been exhausted: Beefeater Sales International Pty Ltd v MIS Funding No 1 Pty Ltd [2016] NSWCA 217.
[5]
The proper construction of clause (ix) of the Endorsement 1
In my view, despite the cases which the parties each advanced, that the construction they pressed accorded with the plain meaning of the unambiguous words there used in the endorsement, they are ambiguous, given what the introductory words there used and what appears in the clauses which follow, including clause (ix).
I am satisfied that the proper construction of clause (ix), driven as that must be by its text, read in the context of the endorsement as a whole, including its introductory words and all of the clauses which follow, is that for which the defendants contended. Namely, the endorsement requires that there be a causal link between the absence of the prudent lender clause specified by clause (ix) in the valuation and the loss for which indemnity is sought.
I am also satisfied that this construction avoids obvious consequences, both for clause (ix) and other provisions agreed in the endorsement, which in the circumstances of this commercial relationship, it must be accepted, would be so irrational and unjust, that it is unlikely that they were intended by these commercial parties.
These conclusions have been driven by the following.
There was no issue that clause (ix) is concerned with risks arising from a valuation in which the defendants failed to include the prudent lender clause there specified, which if it had been included, would provide a potential protection on which the insurer could rely, if a claim was made by an unsophisticated lender, that is one which is not an "Authorised Deposit-Taking Institution" supervised by APRA, for which the lender would otherwise be liable under the policy.
In ascertaining the meaning of clause (ix), it is necessary to take into account that:
1. it appears in a claims made policy which insures specified risks, namely those which arise out of the valuation work performed by the defendants, the clauses of the endorsement identifying those risks which the parties agreed that the insurer would not indemnify; and
2. the risks which were so agreed to be covered by the policy were assumed by the insurer, for the benefit of the insured, in return for the premium paid.
Clause (ix) must thus be read in the context of the various clauses agreed in the endorsement, where circumstances in which the insurer "will not be liable to indemnify the Insured for any Loss, settlement or other payment, or pay any Defence Costs or Inquiry Costs, directly or indirectly arising out of, based upon, attributable to or in consequence of", they being the critical introductory words, are identified.
The insurer's case that the defendants' approach, that these words required that there be a causal connection between the loss and the absence of the prudent lender clause in the valuation, was not available on the plain meaning of the introductory words, rendering as that would the exclusion provided by clause (ix) virtually otiose, cannot be accepted. Nor can it be accepted that this result was unlikely to have been intended by the parties, given that this specified exclusion of risk was one of those agreed in the endorsement, in return for the premium which the parties had agreed.
In my view the text of the introductory words of the endorsement and clause (ix) are not as clear as the parties submitted. That is because the meaning of clause (ix) must be ascertained in light of those introductory words, which must themselves be construed in light of all of the clauses which follow, not only clause (ix). So approached, what was intended by the introductory words is less than clear.
When the various risks excluded by all of the clauses in the endorsement which follow those introductory words are considered, however, it must be concluded that it cannot be accepted that either the introductory words, or those used in clause (ix) have the meaning for which the insurer contended.
That the introductory words are concerned with losses caused by the matters dealt with in the clauses which follow, in the case of clause (ix), by the failure to include a prudent lender clause in a valuation, is supported by various considerations, the first being that the introductory words themselves are capable of being so read, they being "directly or indirectly arising out of based upon, attributable to or in consequence of".
The second being the fact that this professional indemnity insurance policy was agreed to be an all claims policy, with an unlimited retroactive date. It is relevant that while the policy was entered in 2016, it covers valuations prepared during the course of a business which predates both the coming into existence of APRA, that agreed to have occurred in 1998.
There is no suggestion that before the policy was entered, the defendants had any obligation to include a clause of the kind specified in clause (ix) in their valuations. That such a clause was not included in this valuation, suggests that there was then no reason for such a clause to be included. But the evidence does not establish what the defendants' insurance cover may have previously required, if anything, so far as the subject matter there dealt with is concerned.
It follows, nevertheless, that if the insurer's construction of clause (ix) is correct, the parties had in contemplation that claims in respect of any valuations predating the insurance cover which they agreed in 2016, which did not include a clause of the kind specified in clause (ix), which would otherwise undoubtedly be covered by the policy, would be excluded, even when the absence of such a clause was neither the required or causally connected with the loss in question.
It must also be accepted that in these commercial circumstances, the potential consequences of that construction of clause (ix), make it unlikely that this was in the parties' contemplation, when the endorsement was agreed. The answer, I consider, cannot be found in the insurer's submission that the obvious solution would have been for these parties to have negotiated cover in different terms. After all, what is in issue is what the parties in fact agreed, when they negotiated the endorsement to the policy in the terms which arise for construction.
Making what the parties agreed to be that for which the insurer contended even more unlikely, is the consideration that if the introductory words are read in the way for which it contended, as in this case, if a valuation which did not contain the prudent lender clause was prepared for more than one entity, one or more of whom was not an "Authorised Deposit-Taking Institution" supervised by APRA, all liability under the policy is excluded. While the insurer finally did not accept this outcome of the construction it advanced, in my view it must follow. Thus in such a case there would be no liability even for lenders such as the Commonwealth Bank, who were "Authorised Deposit-Taking Institutions" supervised by APRA, even when the absence of the clause was not causally connected with any loss that lender suffered.
That is because on the insurer's construction, clause (ix) is concerned with the criteria by which liability for a valuation is excluded, that is the absence of a prudent lender clause in a valuation which is provided to a lender which is not an "Authorised Deposit-Taking Institution" supervised by APRA, not with what causes a loss, despite the introductory words of the endorsement.
There is an obvious difficulty with that result, confirmed in the oral submissions advanced for the insurer, when it was submitted that the introductory words were causative, imposing as they did the causation requirement that "loss has to arise out of the production of a valuation to a lender of a particular description":
For the insurer it had earlier been put in oral submissions, however, that on a reasonably plain or available construction of the introductory words of the endorsement, that:
"... in circumstances where a valuation is produced for two people, and the claimant is an authorised deposit taking institution, then the loss that has been sustained has been sustained as a result of the provision of the valuation for that person, not the purpose of the valuation for the other person ..."
That submission was advanced to address the possibility which I had raised, that the one valuation prepared for both an "Authorised Deposit-Taking Institution" and entities not so authorised, which did not include the prudential lender clause required by (ix), might be covered by the policy in the case of the "Authorised Deposit-Taking Institution", but not in the case of the non authorised institutions. That was embraced by the insurer, which advanced the last quoted submission to advance that argument, but not by the defendants.
It seems to me that the difficulty with accepting the case so pressed for the insurer, is that it accepts that if a valuation which does not include the prudent lender clause required by clause (ix) is provided to more than one entity, if one of them is an "Authorised Deposit-Taking Institution", the absence of the clause cannot be causative of any loss that lender suffering and so the exclusion does not apply in respect of losses it may suffer.
Just as it is unlikely, however, that the parties intended by the endorsement to exclude liability in such a case, it is also most unlikely that they intended that liability would be excluded when the valuation was also provided to a lender which was not an "Authorised Deposit-Taking Institution", when the absence of the clause was also not causative of that lender's loss.
In my view that is what the introductory words of the endorsement intended. Contrary to the insurer's case, that construction of those words does not involve placing a gloss on the words, which is not there to be found. Rather, it accepts that a valuation which does not include the prudent lender clause either does or does not fall within clause (ix). There cannot be a different answer to that question, for the different entities for which the one valuation was prepared.
Thus if the absence of the prudent lender clause is causative of the loss, which the clause recognises to be possible in the case of a lender which is not an "Authorised Deposit-Taking Institution" supervised by APRA, the valuation is excluded. If its absence has no causative effect, liability is then not excluded.
The insurer also advanced an analogy, that if a motor vehicle policy which doesn't provide cover for drivers under 25, in respect of which it was submitted it would be no answer to a refusal of cover, to require the insurer to show that the driver had the accident, because she was under 25. That, however, did not assist with the proper construction of this endorsement.
That is because it did not pay necessary regard to the introductory words of the endorsement which arise for construction, concerned as they in my view are, with the question of causation in respect of what is dealt with in the clauses which follow, as the insurer itself finally submitted.
Also to be taken into account is that if the introductory words were not so construed, it would also result in the exclusion of risks dealt with in other clauses of the endorsement, which also seems to be exceedingly unlikely to have been contemplated by these commercial parties.
This result can well be illustrated by clause (vii)(c) which provides:
"(vii) Any valuation which the insured failed to:
(c) append a written disclaimer to the valuation report limiting responsibility for reliance on the report to the addressee"
On the insurer's approach, this was the high point of the defendants' case, it accepting that even if the absence of this disclaimer in a valuation was not causally connected with a loss, not only would its absence exclude liability for someone else who had relied on the valuation, it would also exclude liability for the addressee to whom the valuation was provided.
That also appears to have been an exceedingly unlikely outcome for these commercial parties to have agreed, when arriving at a premium for this insurance cover. But it was contended by the insurer it would not result in the acceptance of the defendants' case, given the other parts of the endorsement which arose for consideration, which it would be accepted, demonstrated the overall commercial arrangement which the parties had agreed.
It was thus argued for the insurer that one could comb through the endorsement and look for isolated examples, in different provisions, "where what is on its face a potentially harsh result may ensue", but that did not enable the Court to depart from the plain language used in clause (ix).
In my view what had to be conceded in respect of the insurer's construction of (vii)(c), however, put beyond argument that the introductory words of the endorsement and the words used in clause (ix) had to be construed in the way for which the defendants contended.
The purpose of this all claims professional indemnity insurance policy was, it may not be forgotten, to provide insurance coverage for claims made by anyone to whom a valuation had been or was provided by the defendants, other than those expressly excluded. Why, it might be asked rhetorically, in such circumstances, would these commercial parties conceivably agree to exclude from coverage by clause (vii)(c)) of the endorsement, a valuation which did not contain the disclaimer there provided, when it was not relied on by anyone other than the person to whom it was provided and where the claimed loss could not result from the failure to include that disclaimer? That there simply is no sensible answer to that question, in my view strongly supports the construction for which the defendants contended.
What is provided in clause (v)(a) must also be considered in resolving what lies in issue. That clause clearly does not support the construction for which the defendants contended, it providing as it does:
"The loss is caused by any valuation undertaken by or on behalf of the insured by any person who at the time the valuation was performed was not a member of the Australian property Institute or the Royal Institute of Chartered Surveyors".
Nevertheless, this clause helps explain why it had to be concluded that the introductory words to the endorsement are ambiguous.
This exclusion, unlike the others I have discussed, expressly identifies that it is concerned with what causes a loss, namely, valuations undertaken by persons who do not have the specified qualifications. The introductory words used in this clause, essentially replicate what is provided by the introductory words of the endorsement. Read together, what is provided is not only awkwardly drafted, but makes the introductory words used in clause (v)(a) otiose, unlike what is provided in clause (ix) and other clauses. In this case, read together, they provide:
"The Insurer will not be liable to indemnify the Insured for any Loss, settlement or other payment, or pay any Defence Costs or Inquiry Costs, directly or indirectly arising out of, based upon, attributable to or in consequence of:
(v) The loss is caused by any valuation undertaken by or on behalf of the insured by any person who at the time the valuation was performed:
(a) was not a member of the Australian Property Institute or the Royal Institute of Chartered Surveyors"
Despite what is so provided, it cannot be accept that the introductory words of the endorsement and clause (ix) must be construed in the way for which the insurer contends, particularly that the introductory words are not intended to have a causative effect of the kind for which the defendants contended, given all that I have already discussed.
Further, while there was no issue that the onus falls on the insured to establish that a loss falls within the scope of the insuring clause and on the insurer to establish that it falls within the endorsed exclusions, it is relevant to note that in this case, consistently undoubtedly with their obligations under s 56 of the Civil Procedure Act 2005 (NSW), which requires the parties to assist the Court to further the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings, they have agreed that the absence of the prudent lender clause in the valuation, did not case the losses in question in these proceedings.
That also supports the conclusion that the construction for which the defendants contended is correct, the difficulty on which the insurer relied to advance the construction for which it contended, not actually existing in this case.
It follows that the separate questions must be answered in the way for which the defendants contend.
[6]
Orders and costs
The usual order as to costs under the Civil Procedure Act is that they follow the event, which in this case would be an order for costs as agreed or assessed against the insurer.
The parties should file proposed orders within 7 days, reflecting the conclusions which I have reached. If they are not agreed about the costs orders, I will hear them.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 December 2018