Rich v CGU Insurance Ltd

HIGH COURT OF AUSTRALIAGLEESON CJ,McHUGH, GUMMOW, KIRBY AND CALLINAN JJMatter No S232/2004JOHN DAVID RICH APPELLANTANDCGU INSURANCE LIMITED  RESPONDENTMatter No S233/2004MARK ALAN SILBERMANN  APPELLANTANDCGU INSURANCE LIMITED  RESPONDENTRich v CGU Insurance LimitedSilbermann v CGU Insurance Limited[2005] HCA 167 April 2005S232/2004 and S233/2004ORDERIn each matter:1.        Special leave rescinded.  2.Appellant to pay the respondent's costs of the proceedings in this Court. On appeal from the Supreme Court of New South WalesRepresentation:D L Williams SC with M A Jones for the appellants (instructed by Joanne Kelly)D F Jackson QC with A W Street SC and E G Romaniuk for the respondent (instructed by Colin Biggers & Paisley)Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSRich v CGU Insurance LimitedSilbermann v CGU Insurance LimitedInsurance – Professional indemnity insurance – Directors and officers liability insurance policy – Exclusion for losses arising from dishonest, fraudulent or malicious conduct – Exclusion engaged only where conduct established to have occurred following final adjudication adverse to the insured – Proceedings instituted against appellants involving questions of breach of duty as company directors – Appellants claimed for advance payment of defence costs under policy – Respondent insurer purported to deny liability relying on exclusion under the policy – Respondent also argued that it had avoided the policy under the Insurance Contracts Act 1984 (Cth), s 28 – Whether respondent can rely on exclusion absent an existing judgment or other final adjudication adverse to appellants. Practice and procedure – Appeal...