Case note: Smart v AAI Ltd; JRK Realty Pty Ltd v AAI Ltd [2015] NSWSC 392

Background

Over the course of five months Mr Nathan Smart and JRK Realty Pty Ltd (the Plaintiffs) transferred $267,000 in a number of transactions to Q1 Financial Services Pty Ltd (Q1).  Q1 was a finance broker.  The Plaintiffs were persuaded to transfer the money by Q1’s general manager, Mr Damian Lynch (Lynch).  Lynch told them that the money would be used to make loans to clients and represented to the Plaintiffs that the loans would return interest at a rate of 3% per month.  However, Lynch misappropriated the funds.

Q1 was wound up and deregistered. Q1 held an insurance policy underwritten by AAI Ltd, formerly known as Vero Insurance Ltd (Vero), at the time of the transactions.  The Plaintiffs brought proceedings directly against Vero under section 601AG of the Corporations Act 2001 (Cth) (the Act).

Issue

The issue for determination was whether, on the facts of the case, Vero was required to meet the Plaintiffs’ claims by operation of section 601AG of the Act.

Findings

Justice Beech-Jones made the following findings in a judgment delivered on 22 May 2015, dismissing the Plaintiffs’ claims:

  1. the Plaintiffs did not make a ‘claim’ against Q1 during the period of insurance and so the insuring clause of the policy was not engaged.
  2. the liability of Q1 was excluded from cover because it arose directly or indirectly from a liability that Q1 assumed ‘outside the normal course of the Professional Services’ as defined in the policy.  In making this finding, the Court accepted the evidence of banker, Mr Dennis Roams for Vero who said, ‘… once Q1 approached Mr Smart and JRK for funds and received funds from Mr Smart and JRK, in my opinion Q1 ceased to be acting as a mortgage broker and/or finance broker. This was not a usual method of disbursing loan funds. In my experience lenders generally provide loan funds directly to borrowers and not to mortgage or finance brokers.’
  3. Q1’s liability was not covered because of an exclusion clause in the policy concerning dishonest and fraudulent acts of the insured. Although, there was a write back to this clause for the dishonest or fraudulent acts of Q1’s employees, it was not engaged because Lynch was an employee of Q1

The Plaintiffs were ordered to pay Vero’s costs.