mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ayoub v Euphoric Pty Ltd (2004) 12 BPR 22,735; [2004] NSWCA 457
Outcome: cited
In my opinion, counsel for the defendants is correct in submitting that a Jones v Dunkel inference is also available because of the failure by Aon to call evidence from those involved in the negotiations for Macquarie Underwriting, particularly Stuart Coleman. The availability of a Jones v Dunkel inference in the case of a witness who is a third party can be a difficult issue. Macquarie and Aon are not in the "same camp" and Coleman is not under the control of Aon. In a sense, he was available to both parties. However, only the broker, Aon, had dealings with the potential insurer. The client was not, and would never be, directly in that loop. Between the parties here, it was natural for Aon rather than the defendants to call the evidence from those at Macquarie Underwriting who were involved in the dealings between Aon and Macquarie from the inception of business and in the subsequent management of the business including the proposed renewal. The failure to lead this evidence further buttresses the inference in favour of the defendants ( Payne v Parker [1976] 1 NSWLR 191 per Glass JA at 201 202; Prasad v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 133 ; (1991) 101 ALR 109 at 123; Turbo Tek Enterprises Inc v Sperling Enterprises Pty Ltd [1989] FCA 275 ; (1989) 23 FCR 331 at 343 344; Ayoub v Euphoric Pty Ltd (2004) 12 BPR 22,735; [2004] NSWCA 457 per McClellan AJA at [62] [64]).
Case: Caldwell v JA Neilson Investments Pty Ltd (2007) 14 ANZ Ins Cas 61-724; [2007] NSWCA 3
Outcome: followed
The unexplained omission by Aon to draw the attention of the client to such an important consequence of the overall insurance arrangements that were in contemplation was a breach of the duty of Aon to exercise care and skill in carrying out its role as broker ( Caldwell v JA Neilson Investments Pty Ltd (2007) 14 ANZ Ins Cas 61-724; [2007] NSWCA 3 ; per Ipp JA at [103] [104]). No expert evidence is necessary to come to that conclusion (cf Geoffrey W Hill &amp; Associates (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas 61-012 per Kirby P at 76768).
Case: Campbell's Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386 
Outcome: referred to
Finkelstein J took the wider view in TS &amp; B Retail Systems Pty Ltd 158 FCR 444 and suggested that the High Court in Campbell's Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386 had approved the effect of the statements by Lords Wilberforce and Roskill in Trendtex [1982] AC 679. The precise point that arises here did not arise in Campbell's Cash and Carry Pty Ltd [2006] HCA 41 ; 229 CLR 386. However, the reasoning of Gummow, Hayne and Crennan JJ at [68] [82] and Callinan and Heydon JJ at [258] [261] supports the opinion of Finkelstein J. In my opinion, the principle enunciated in Trendtex [1982] AC 679 can be taken to be established for Australia. It needs to be borne in mind that the statement in Poulton 89 CLR 540 was not the centre of controversy in that case.
Case: Cee Bee Marine Ltd v Lombard Insurance Co Ltd [1990] 2 NZLR 1 
Outcome: applied
Quantification of damages is a different matter. It has been said that the defendants have to establish that, absent the breach of duty, relevant cover would have been obtained, eg Ferrcom Pty Ltd v Inbush (NSW) Pty Ltd (1997) 9 ANZ Ins Cas 61-339 per Cole JA at 76732. That is so if full indemnity is to be awarded, cf Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 per Mason, Wilson and Dawson JJ at 13. The position is different if less than full indemnity is considered. Reconstruction of what would have occurred if the correct advice had been given involves a hypothetical set of past circumstances. As explained in Malec v JC Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 , particularly per Brennan and Dawson JJ at 639 640 and Deane, Gaudron, McHugh JJ at 642 643, this is not decided as if it were an assessment on the balance of probabilities as to whether an event did or did not happen. Furthermore, in considering this case, it is to be borne in mind that Aon prevented the posited situation occurring and that it, not the defendants, was the expert in the field. See, generally, Cee Bee Marine Ltd v Lombard Insurance Co Ltd [1990] 2 NZLR 1 at 5 6. The reconstruction of events in this case does not depend upon what the defendants would have done in a particular situation in the sense discussed by Buchanan JA in Crown Insurance Services Pty Ltd v National Mutual Life Association of Australasia Ltd (2005) 13 ANZ Ins Cas 61-659 at [9] [14]. It principally (but not entirely) depends upon the assessment as to what others would have done. It is to be noted that the discussion of this question by Ashley J in TBI Pty Ltd v Aon Financial Planning Ltd (2004) 13 ANZ Ins Cas 61-601 at [213] [218] was tentative obiter dicta.
Case: Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62
Outcome: distinguished
There have been varied opinions as to whether that basis can be applied by Australian courts without the High Court qualifying Poulton 89 CLR 540. As it happens, most negative opinions have been expressed by judges of this Court, eg Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd [1994] FCA 814 ; National Mutual Property Services (Aust) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 ; Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 ; Deloitte Touche Tohmatsu v Cridlands Pty Ltd [2003] FCA 1413 ; (2003) 134 FCR 474 ; and Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; (2006) 70 IPR 146. A number of those and other authorities are analysed by McDougall J, who took the wider view, in Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 1041 ; (2004) 220 ALR 267.
Case: Commercial Union Assurance Co of Australia Ltd v Beard (1999) 47 NSWLR 735; (2000) 11 ANZ Ins Cas 61-458
Outcome: cited
Some basic propositions about s 21 should be borne in mind before approaching the detail of the issue. (1) "Knows" and "known" are strong words. They mean considerably more than "believes" or "suspects" or even "strongly suspects" (per McHugh, Kirby and Callinan JJ in Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in liq) [2003] HCA 25 ; (2003) 214 CLR 514 at 531; see also Commercial Union Assurance Co of Australia Ltd v Beard (1999) 47 NSWLR 735; (2000) 11 ANZ Ins Cas 61-458 per Davies A-JA at 75259). (2) The "matter" must be known to the insured. (3) On one alternative, the "matter" must also be known to be relevant to the decision of the particular insurer whether to accept risk, and, if so, on what terms in this case, on the basis put forward, by Macquarie Underwriting. As Gummow and Hayne JJ said in Permanent Trustee Australia Ltd [2003] HCA 25 ; 214 CLR 514 at [70] : "Under the Act, attention is shifted from the prudent insurer to the particular insurer." Although their Honours were in dissent in the result, this statement is obviously correct. (See also Twenty-First Maylux Pty Ltd v Mercantile Mutual Insurance (Aust) Ltd [1990] VR 919 ; (1989) 92 ALR 661.) (4) Relevance to the acceptance of the risk in the sense of the particular insurance hazard is required (McHugh, Kirby and Callinan JJ in Permanent Trustee Australia Ltd [2003] HCA 25 ; 214 CLR 514 at [32] ). (5) In the other alternative, it must be found that a reasonable person in the circumstances could be expected to know that the matter was relevant to the decision of the particular insurer. There is some debate about the meaning of the words "the circumstances". Although they plainly mean the circumstances of the particular case, the debate is said to be between subjective and extrinsic circumstances (see the discussion in Mann P, Annotated Insurance Contracts Act (4 th ed, Lawbook Co, 2003), para 21.10.8). (6) There is a debate as to whether an insured can "know" a matter by its agent cf McHugh, Kirby and Callinan JJ at [30] with Gummow and Hayne JJ in Permanent Trustee Australia Ltd [2003] HCA 25 ; 214 CLR 514 at [82] [89]. Pending further clarification by the High Court, the wider view should be taken following Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (1996) 40 NSWLR 543 per Powell JA at 610 611 (agreed with by Priestley JA and Clarke JA). (7) The obligation applies to renewal of a contract (s 11(9)(b)) ( Alexander Stenhouse Ltd v Austcan Investments Pty Ltd [1993] HCA 22 ; (1993) 112 ALR 353).
Case: Crown Insurance Services Pty Ltd v National Mutual Life Association of Australasia Ltd (2005) 13 ANZ Ins Cas 61-659
Outcome: distinguished
Quantification of damages is a different matter. It has been said that the defendants have to establish that, absent the breach of duty, relevant cover would have been obtained, eg Ferrcom Pty Ltd v Inbush (NSW) Pty Ltd (1997) 9 ANZ Ins Cas 61-339 per Cole JA at 76732. That is so if full indemnity is to be awarded, cf Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 per Mason, Wilson and Dawson JJ at 13. The position is different if less than full indemnity is considered. Reconstruction of what would have occurred if the correct advice had been given involves a hypothetical set of past circumstances. As explained in Malec v JC Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 , particularly per Brennan and Dawson JJ at 639 640 and Deane, Gaudron, McHugh JJ at 642 643, this is not decided as if it were an assessment on the balance of probabilities as to whether an event did or did not happen. Furthermore, in considering this case, it is to be borne in mind that Aon prevented the posited situation occurring and that it, not the defendants, was the expert in the field. See, generally, Cee Bee Marine Ltd v Lombard Insurance Co Ltd [1990] 2 NZLR 1 at 5 6. The reconstruction of events in this case does not depend upon what the defendants would have done in a particular situation in the sense discussed by Buchanan JA in Crown Insurance Services Pty Ltd v National Mutual Life Association of Australasia Ltd (2005) 13 ANZ Ins Cas 61-659 at [9] [14]. It principally (but not entirely) depends upon the assessment as to what others would have done. It is to be noted that the discussion of this question by Ashley J in TBI Pty Ltd v Aon Financial Planning Ltd (2004) 13 ANZ Ins Cas 61-601 at [213] [218] was tentative obiter dicta.
Case: Deloitte Touche Tohmatsu v Cridlands Pty Ltd [2003] FCA 1413 ; (2003) 134 FCR 474
Outcome: distinguished
There have been varied opinions as to whether that basis can be applied by Australian courts without the High Court qualifying Poulton 89 CLR 540. As it happens, most negative opinions have been expressed by judges of this Court, eg Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd [1994] FCA 814 ; National Mutual Property Services (Aust) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 ; Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 ; Deloitte Touche Tohmatsu v Cridlands Pty Ltd [2003] FCA 1413 ; (2003) 134 FCR 474 ; and Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; (2006) 70 IPR 146. A number of those and other authorities are analysed by McDougall J, who took the wider view, in Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 1041 ; (2004) 220 ALR 267.
Case: Fernance v Nominal Defendant (1989) 17 NSWLR 710
Outcome: cited
The first two steps are common to all causes of action. There has been much debate about amendment and limitation since Weldon v Neal (1887) 19 QBD 394. Many of the authorities were considered by the New South Wales Court of Appeal, presided over by Gleeson CJ, in relation to a rule similar to O 6 r 11(3) in Fernance v Nominal Defendant (1989) 17 NSWLR 710, particularly concerning the relationship between that rule and the New South Wales equivalent of the present O 13 r 2 of the Federal Court Rules . In this Court, see eg Zoneff v Elcom Credit Union Ltd [1990] ATPR 41-058 at 51,746 51,747. The introduction of s 59(2B) to the Federal Court of Australia Act 1976 (Cth) in 1994 and the consequent amendments to O 13 r 2 changed the landscape. Here, no argument was directed to those changes and their significance and, in particular, as to the interplay between O 6 r 11 and O 13 r 2. There was no discussion of the power to dispense with the Rules (O 1 r 8) (cf Karam v Australia and New Zealand Banking Group Ltd [2000] NSWSC 596 ; (2000) 34 ACSR 545).
Case: Ferrcom Pty Ltd v Inbush (NSW) Pty Ltd (1997) 9 ANZ Ins Cas 61-339
Outcome: cited
Quantification of damages is a different matter. It has been said that the defendants have to establish that, absent the breach of duty, relevant cover would have been obtained, eg Ferrcom Pty Ltd v Inbush (NSW) Pty Ltd (1997) 9 ANZ Ins Cas 61-339 per Cole JA at 76732. That is so if full indemnity is to be awarded, cf Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 per Mason, Wilson and Dawson JJ at 13. The position is different if less than full indemnity is considered. Reconstruction of what would have occurred if the correct advice had been given involves a hypothetical set of past circumstances. As explained in Malec v JC Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 , particularly per Brennan and Dawson JJ at 639 640 and Deane, Gaudron, McHugh JJ at 642 643, this is not decided as if it were an assessment on the balance of probabilities as to whether an event did or did not happen. Furthermore, in considering this case, it is to be borne in mind that Aon prevented the posited situation occurring and that it, not the defendants, was the expert in the field. See, generally, Cee Bee Marine Ltd v Lombard Insurance Co Ltd [1990] 2 NZLR 1 at 5 6. The reconstruction of events in this case does not depend upon what the defendants would have done in a particular situation in the sense discussed by Buchanan JA in Crown Insurance Services Pty Ltd v National Mutual Life Association of Australasia Ltd (2005) 13 ANZ Ins Cas 61-659 at [9] [14]. It principally (but not entirely) depends upon the assessment as to what others would have done. It is to be noted that the discussion of this question by Ashley J in TBI Pty Ltd v Aon Financial Planning Ltd (2004) 13 ANZ Ins Cas 61-601 at [213] [218] was tentative obiter dicta.
Case: First City Corporation Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710 
Outcome: cited
One well established category where an assignment is valid (recognised by the authorities cited in Poulton 89 CLR 540 at 602) is an assignment of property, even though the property may be incapable of being recovered without litigation or, as it was put by Lord Roskill in Trendtex [1982] AC 679 at 703, where the cause of action is incidental to a right of property that has been acquired. There is no reason why such a cause of action could not include tort in an appropriate case eg detinue or conversion. However, based upon the submissions in this case, examples of the practical application of the principle are sparse. Re Daley; Ex parte National Australia Bank Ltd (1992) 37 FCR 390 was cited but the decision turned on what was held to be the assignment of a debt (37 FCR at 394 395). In Monk v Australian and New Zealand Banking Group Ltd (1994) 34 NSWLR 148 there had been no assignment of the cheques that would have constituted the necessary property. In that case, Cohen J referred to the decision of Gault J in First City Corporation Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710 where it was held (at 757) that the assignment of a debenture by a parent company to a subsidiary included an assignment of causes of action in tort against a receiver of the company that issued the debenture and that the causes of action in tort were ancillary to the assignment of the debenture and so valid. The effect of that decision is somewhat clouded by the subsequent appellate history of the case ( First City Corporation Ltd v Downsview Nominees Ltd [1990] 3 NZLR 265; Downsview Nominees Ltd v First City Corporation Ltd [1993] AC 295) although the appeals did not turn upon the point in issue here.
Case: Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1
Outcome: cited
Quantification of damages is a different matter. It has been said that the defendants have to establish that, absent the breach of duty, relevant cover would have been obtained, eg Ferrcom Pty Ltd v Inbush (NSW) Pty Ltd (1997) 9 ANZ Ins Cas 61-339 per Cole JA at 76732. That is so if full indemnity is to be awarded, cf Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 per Mason, Wilson and Dawson JJ at 13. The position is different if less than full indemnity is considered. Reconstruction of what would have occurred if the correct advice had been given involves a hypothetical set of past circumstances. As explained in Malec v JC Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 , particularly per Brennan and Dawson JJ at 639 640 and Deane, Gaudron, McHugh JJ at 642 643, this is not decided as if it were an assessment on the balance of probabilities as to whether an event did or did not happen. Furthermore, in considering this case, it is to be borne in mind that Aon prevented the posited situation occurring and that it, not the defendants, was the expert in the field. See, generally, Cee Bee Marine Ltd v Lombard Insurance Co Ltd [1990] 2 NZLR 1 at 5 6. The reconstruction of events in this case does not depend upon what the defendants would have done in a particular situation in the sense discussed by Buchanan JA in Crown Insurance Services Pty Ltd v National Mutual Life Association of Australasia Ltd (2005) 13 ANZ Ins Cas 61-659 at [9] [14]. It principally (but not entirely) depends upon the assessment as to what others would have done. It is to be noted that the discussion of this question by Ashley J in TBI Pty Ltd v Aon Financial Planning Ltd (2004) 13 ANZ Ins Cas 61-601 at [213] [218] was tentative obiter dicta.
Case: Geoffrey W Hill &amp; Associates (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas 61-012
Outcome: applied
The unexplained omission by Aon to draw the attention of the client to such an important consequence of the overall insurance arrangements that were in contemplation was a breach of the duty of Aon to exercise care and skill in carrying out its role as broker ( Caldwell v JA Neilson Investments Pty Ltd (2007) 14 ANZ Ins Cas 61-724; [2007] NSWCA 3 ; per Ipp JA at [103] [104]). No expert evidence is necessary to come to that conclusion (cf Geoffrey W Hill &amp; Associates (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas 61-012 per Kirby P at 76768).
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: applied
Based upon the evidence, it can be inferred that if Aon had approached Macquarie Underwriting on the basis that the financial planning business was in truth a continuing business, although carried on by another entity, that PI insurance would have been issued as if it were a renewal on terms no less favourable than the quote given as to premium and with retroactive cover to Tasman Investment and Warne to at least the inception of business and on the basis that prior known circumstances would be covered. At the very least, the evidence required an explanation from Aon as to precisely what occurred between it and Macquarie Underwriting. That explanation may, in turn, have required an explanation from Macquarie Underwriting. Counsel for the defendants is on strong ground in relying upon the unexplained failure of Aon to call any witness of its own, particularly either or both of Elia and Kazakova. A clear Jones v Dunkel inference is to be drawn ( Jones v Dunkel (1959) 101 CLR 298). The consequence is that the inference available from the evidence that a renewal on suitable terms to cover the Tasman Investment run off would have been available from Macquarie Underwriting can be more readily, and is, drawn. 88 In my opinion, counsel for the defendants is correct in submitting that a Jones v Dunkel inference is also available because of the failure by Aon to call evidence from those involved in the negotiations for Macquarie Underwriting, particularly Stuart Coleman. The availability of a Jones v Dunkel inference in the case of a witness who is a third party can be a difficult issue. Macquarie and Aon are not in the "same camp" and Coleman is not under the control of Aon. In a sense, he was available to both parties. However, only the broker, Aon, had dealings with the potential insurer. The client was not, and would never be, directly in that loop. Between the parties here, it was natural for Aon rather than the defendants to call the evidence from those at Macquarie Underwriting who were involved in the dealings between Aon and Macquarie from the inception of business and in the subsequent management of the business including the proposed renewal. The failure to lead this evidence further buttresses the inference in favour of the defendants ( Payne v Parker [1976] 1 NSWLR 191 per Glass JA at 201 202; Prasad v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 133 ; (1991) 101 ALR 109 at 123; Turbo Tek Enterprises Inc v Sperling Enterprises Pty Ltd [1989] FCA 275 ; (1989) 23 FCR 331 at 343 344; Ayoub v Euphoric Pty Ltd (2004) 12 BPR 22,735; [2004] NSWCA 457 per McClellan AJA at [62] [64]).
Case: Lefevre v White [1990] 1 Lloyd's Reps 569
Outcome: cited
However, even if O 6 r 11(3) alone is considered and operates according to its terms, there is a real issue in this case as to the last step the effect of the limitation provisions. In Martinus v Kidd [1982] HCA 64 ; (1982) 150 CLR 648 it was pointed out that no new cause of action comes into being against the personal representative of a deceased tortfeasor the existing cause of action survives. In that case, time runs for limitation purposes from accrual of the cause of action against the deceased (see per Gibbs CJ, Murphy and Wilson JJ at 652; Mason J at 659). The same principle must be applicable in relation to a cause of action that survives for the benefit of the personal representation of the deceased estate, absent any special provisions. That principle applies to an action by a trustee in bankruptcy to enforce a liability of the bankrupt ( Re Mansell; Ex parte Norton (1892) 66 LT 245). The same principle should apply in the case of the assignment of a cause of action. The original cause of action remains the foundation of the action (although not directly applicable, see " The Jordan Nicolov" [1990] 2 Lloyds Reps 11 per Hobhouse J at 19; Lefevre v White [1990] 1 Lloyd's Reps 569 per Popplewell J at 577 citing Post Office v Norwich Fire Insurance Ltd [1967] 2 QB 363 per Lord Denning at 373; cf per Jacobs J in Re Harry Simpson &amp; Company Pty Ltd and Companies Act 1936 [1964-5] NSWR 603 at 605; (1963) 81 WN (Pt 1) (NSW) 207 at 209. In the present case, the same causes of action have been pursued at all times.