Dimitra Cassidy v Eric J Leslie [2010] NSWSC 742

The central issue in this case was whether an insurer was obliged to indemnify a valuer against a claim. In particular, whether a claim had been made and if it had, was the claim notified to the insurer within the period of insurance. The property the subject of the valuation was taken as security by the lender. The lender took possession of the property and the property was sold. The lender claimed that the property had been grossly overvalued.

Justice Hoeben decided that an email from the lender to the insurer sent prior to auction which put the insurer on notice “That the valuation may be fundamentally flawed” and that it intended to recover any shortfall by commencing legal proceedings, was in fact a claim. Justice Hoeben quoted from an earlier decision:

The expression “claims made against the insured” (emphasis added) rules out any argument that the word “claim” could refer to the right to make a claim …

Read against a common understanding of Contractors and Timalco that there were alleged defects of design, the letter of 17 January was what Steyn J described as an assertion by Contractors against Timalco of a right to some relief because of the breach by the insured of the duty referred to in the cover. I agree…
The email was a claim because it amounted to “a written assertion of a right to compensation” as the word claim was defined in the policy. However, the claim had not been made within the period of insurance cover.

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