Coveney v Asbestos Injuries Compensation Fund Ltd; Davis v Asbestos Injuries Compensation Fund Ltd; WorkCover Queensland v Asbestos Injuries Compensation Fund Ltd

[2024] NSWCA 317

NSW Court of Appeal

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Interrogate

Catchwords

1. Trusts
2. › Judicial advice
3. › Trustee seeking advice on scope of power to make payments
4. › Scheme established to compensate victims of asbestos-related diseases
5. › Whether trustee justified in not making payments to discharge judgment debts of liable entity to the extent subject to reimbursement by interstate workers compensation insurer
6. › James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 (NSW), ss 3, 4, 23, 32
7. › Trustee Act 1925 (NSW), s 63
1. Contract
2. › Construction of commercial instruments
3. › Funding agreement and trust deed establishing asbestos compensation fund
4. › Cascade of defined terms
5. › Exclusion clause excluding claims 'to the extent they have been recovered or are recoverable under a Worker's Compensation Scheme or Policy'
6. › Whether exclusion applied to workers compensation payments received from third-party insurer rather than liable entity
7. › Significance of pronoun 'they' in exclusion clause
8. › Text, context and purpose
1. Appeal
2. › Leave to appeal
3. › Non-parties to judicial advice proceedings
4. › Whether leave to appeal should be granted to persons heard as interested parties but not joined
5. › Supreme Court Act 1970 (NSW), s 101

Quick Take

Exclusion clauses in the Funding Agreement do not reduce the trustee's obligation to pay judgment debts by the amount of workers compensation payments received from interstate insurers such as WorkCover Queensland; the trustee must pay judgment debts in full.