Compagnie Francaise D'Assurance Pour le Commerce Exterieur t/as Coface Australia v Sims Group Australia Holdings Ltd

[2013] NSWCA 418

NSW Court of Appeal

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Interrogate

Catchwords

1. Insurance
2. › Trade credit insurance
3. › Prudent uninsured obligation
4. › Release of charge over buyer's assets
5. › Whether release breached obligation to act as prudent uninsured
6. › Whether amounts insured were secured by the charge
1. Contract
2. › Construction and interpretation
3. › Business sale agreement
4. › Indemnity clause
5. › Whether amounts owing under separate on-sale contracts were amounts owing 'under' or 'in connection with' the business sale agreement
6. › Scope of charge over assets
1. Contract
2. › Construction and interpretation
3. › Deed of charge
4. › Scope of security
5. › Meaning of 'in connection with'
6. › Whether expression should be given widest possible meaning where express purpose of charge was limited
1. Insurance
2. › Trade credit insurance
3. › Quantum of claim
4. › Whether debts extinguished by payment can be revived by agreement between insured and buyer
5. › Estoppel by deed
6. › Whether estoppel binds insurer

Quick Take

An insured under a trade credit insurance policy cannot claim for debts that have been extinguished by payment, even where the insured and buyer subsequently agree by deed to treat those debts as outstanding; an estoppel by deed arising from such an agreement does not bind the insurer. The expression 'in connection with' in a deed of charge should not be given the widest possible meaning where the express purpose for which the charge was granted indicates a more limited scope. Where separate contracts supersede and are inconsistent with an earlier agreement, amounts due under the later contracts are not amounts owing 'under' or 'in connection with' the earlier agreement.