Commonwealth Consolidated Acts Commonwealth Consolidated Acts(a) an insurer is liable under a contract of general insurance in respect of a loss; and
(b) the insurer has a right of subrogation in respect of the loss; and
(c) an amount is recovered (whether by the insurer or the insured) from another person in respect of the loss.
(2) If the amount is recovered by the insurer in exercising the insurer's right of subrogation in respect of the loss:
(a) the insurer is entitled under this paragraph to so much of the amount as does not exceed the sum of:
(i) the amount paid by the insurer to the insured in respect of the loss; and
(ii) the amount paid by the insurer for administrative and legal costs incurred in connection with the recovery; and
(b) if the amount recovered exceeds the amount to which the insurer is entitled under paragraph (a)--the insured is entitled under this paragraph to so much of the excess as does not exceed the insured's overall loss; and
(c) if the amount recovered exceeds the sum of:
(i) the amount to which the insurer is entitled under paragraph (a); and
(ii) the amount (if any) to which the insured is entitled under paragraph (b);
the insurer is entitled to the excess.
Amount recovered by insured
(3) If the amount is recovered by the insured:
(a) the insured is entitled under this paragraph to so much of the amount as does not exceed the sum of:
(i) the insured's overall loss; and
(ii) the amount paid by the insured for administrative and legal costs incurred in connection with the recovery; and
(b) if the amount recovered exceeds the amount to which the insured is entitled under paragraph (a)--the insurer is entitled to so much of the excess as does not exceed the amount paid by the insurer to the insured in respect of the loss; and
(c) if the amount recovered exceeds the sum of:
(i) the amount to which the insured is entitled under paragraph (a); and
(ii) the amount (if any) to which the insurer is entitled under paragraph (b);
the insured is entitled to the excess.
Amount recovered by insurer and insured jointly
(4) Subsections (5), (6) and (7) apply if the amount is recovered by the insurer and the insured jointly.
(5) If the amount recovered is less than the sum of the paragraph (2)(a) amount and the paragraph (3)(a) amount, the insurer and the insured are each entitled to a portion of the amount recovered, calculated on a pro rata basis in proportion to the paragraph (2)(a) amount and the paragraph (3)(a) amount.
(6) If the amount recovered is equal to the sum of the paragraph (2)(a) amount and the paragraph (3)(a) amount:
(a) the insurer is entitled to the paragraph (2)(a) amount; and
(b) the insured is entitled to the paragraph (3)(a) amount.
(7) If the amount recovered exceeds the sum of the paragraph (2)(a) amount and the paragraph (3)(a) amount, then:
(a) the insurer is entitled to the paragraph (2)(a) amount; and
(b) the insured is entitled to the paragraph (3)(a) amount; and
(c) in addition to those amounts, the insurer and the insured are each entitled to a portion of the remainder of the amount recovered, calculated on a pro rata basis in proportion to the amounts referred to in subparagraphs (2)(a)(ii) and (3)(a)(ii).
Amount awarded by way of interest
(8) If an amount (the interest amount ) by way of interest is awarded in respect of the amount recovered (the principal amount ), the following apply:
(a) if the principal amount was recovered by the insurer, the insurer is entitled to the interest amount;
(b) if the principal amount was recovered by the insured, the insured is entitled to the interest amount;
(c) if the principal amount was recovered by the insurer and the insured jointly, the interest amount is to be divided fairly between the insurer and the insured, having regard to:
(i) the amounts to which the insurer and the insured are each entitled under subsection (5), (6) or (7), as the case requires; and
(ii) the periods of time during which the insurer and the insured have lost the use of their money.
Rights of insurer and insured are subject to contract and any agreement
(9) The rights of the insurer and the insured under this section in respect of a loss are subject to:
(a) the relevant contract of insurance; and
(b) any agreement made between the insurer and the insured after the loss occurred.
"insured's overall loss" , in relation to a loss incurred by an insured to which this section applies, means the amount of the loss reduced by any amount paid to the insured by the insurer in respect of the loss.
"paragraph (2)(a) amount" means the sum of the amounts referred to in subparagraphs (2)(a)(i) and (ii).
"paragraph (3)(a) amount" means the sum of the amounts referred to in
subparagraphs (3)(a)(i) and (ii).