1Under the Oswald v Bailey test for leave under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), a plaintiff must show an arguable case both as to the defendant's liability and that the insurance policy responds to that liability; failure on either limb is fatal to the application.
2A product list exclusion in a professional indemnity policy operates by reference to the claim against the insured entity, not by reference to whether the individual whose conduct gave rise to liability was himself an 'Insured' under the policy; where s 917B of the Corporations Act 2001 (Cth) makes a licensee responsible for its representative's conduct whether or not within authority, the exclusion applies to the claim against the licensee.
3Where all claims against a financial services licensee — including claims for failure to provide statutory disclosure documents and failure to supervise — are at least indirectly based upon, attributable to, or in consequence of advice given by an authorised representative, a financial planning exclusion in a financial institutions policy applies to all such claims.
Case Details
Citation[2008] NSWSC 689
CourtNSWSC
JurisdictionNew South Wales
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