Standard Publishing House v Chen GIO General v Allianz Australia Insurance [2012] NSWSC 1544 (14 December 2012)

Last Updated: 20 December 2012

Supreme Court New South Wales

Case Title:	Standard Publishing House v Chen GIO General v Allianz Australia Insurance
Medium Neutral Citation:	[2012] NSWSC 1544
Hearing Date(s):	03/12/2012
Decision Date:	14 December 2012
Jurisdiction:	Equity Division - Commercial List
Before:	McDougall J
Decision:	See at [71].
Catchwords:	[INSURANCE] - whether plaintiff obliged to maintain an insurance policy that covered defendant for damage to property - whether defence of circuity of action available by breach of obligation to insure - waiver of subrogation clause - whether waiver contained in the policy affords an answer to the subrogated claim brought by the plaintiff - whether waiver of subrogation clause is limited to claims in respect of losses against which co-insured is entitled to be indemnified - contribution - whether double insurance.
Legislation Cited:	Uniform Civil Procedure Rules (2005)
Cases Cited:	Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99 GPS Power Pty Ltd v Gardiner Willis & Associates Pty Ltd [2000] QCA 495; (2001) 11 ANZ Insurance Cases 61-482 Larson-Juhl v Jay West [2001] NSWCA 260; (2001) 11 ANZ Insurance Cases 61-499 Woodside Petroleum Development Pty Ltd v H&R-E&W Pty Ltd (1999) 20 WAR 380;
Category:	Principal judgment
Parties:	2008/288314 Standard Publishing House (Aust) Pty Limited (Plaintiff) Zhan Yuan Chen (Defendant) Hong Cai (Second Defendant) (2011/96744) GIO General Limited ACN 000 681 583 (Plaintiff) Allianz Australia Insurance Limited ACN 000 122 580 (Defendant)
Representation
- Counsel:	Counsel: (2008/288314) T A Alexis SC / G B Carolan (Plaintiff ) D S Weinberger (Defendant) (2011/96744) D S Weinberger (Plaintiff) T A Alexis SC / G B Carolan (Defendant)
- Solicitors:	Solicitors: (2008/288314) Gells Lawyers (Plaintiff) DLA Piper (Defendant) (2011/96744) DLA Piper (Plaintiff) Gells Lawyers (Defendant)
File Number(s):	2008/288314 2011/96744

JUDGMENT

1. HIS HONOUR: Standard Publishing House (Aust) Pty Ltd (the lessee) leased premises at Croydon Park from Zhan Yuan Chen and Hong Yaa Cai (the lessor). The lessee used those premises for the purposes of its printing business. There were three occasions during 2008 when rainwater entered the premises and caused damage to the lessee's printing machinery and stock. The lessee was indemnified by its insurer (Allianz) for the consequences of the first and third of those incidents. The lessor's insurer (GIO) has paid an agreed sum to the lessee by way of compensation in respect of the second of those incidents.

2. Those events have given rise to two proceedings in this court. In one proceeding, commenced by Allianz in the name of the lessee, the lessee seeks damages in respect of the first and third incidents. In the other proceeding, GIO claims contribution from Allianz in respect of the amount paid by GIO to the lessee in respect of the second incident.

3. The parties have agreed on the relevant facts and documents, and on the issues that require decision. Although those issues were described as "separate issues" (and an order was made accordingly pursuant to UCPR r 28.2), it is I think more correct to say that they are the only remaining issues in the two proceedings.

The questions for decision

4. The questions which the parties have agreed require decision are:

(1) on the proper construction of the relevant provisions of the lease, was the lessee obliged to maintain, in its name and in that of the lessor, an insurance policy that covered the lessor for the consequences of each of the three rainfall incidents?

(2) does the waiver of subrogation clause contained in the Allianz policy afford an answer to the subrogated claim brought by Allianz in the name of the lessee against the lessor?

(3) is Allianz liable to contribute to the amount paid by GIO to the lessee?

5. The parties have agreed on the outcome of the answers to those separate questions:

(1) If question 1 or question 2 is answered "yes", then the lessor is entitled to judgment in the proceeding brought against it by the lessee.

(2) If each of questions 1 and 2 is answered "no", the lessee is entitled to judgment in that proceeding against the lessor for the sum of $782,500.00 inclusive of interest.

(3) If the answer to question 3 is "yes", GIO is entitled to judgment in the proceeding brought by it against Allianz in the sum of $325,000.00 inclusive of interest.

(4) If the answer to question 3 is "no", Allianz is entitled to judgment in that proceeding.

6. The parties have agreed, further, that in any event there will not be any order as to costs in either proceeding.

The agreed facts

7. I summarise the statement of agreed facts.

8. The lease was for a period of five years, from 1 July 2005 to 20 June 2010.

9. The lessee carried on its business of a commercial printer from the premises.

10. There were three "inundations": occasions when rainwater entered the premises in various ways.

11. The "February 2008 inundation" occurred on about 8 February 2008, when rainwater entered the premises through a leak in the roof or from an overflowing gutter or drainpipe.

12. The "June 2008 inundation" occurred when rainwater entered the premises from, through and under their northern wall.

13. The "December 2008 inundation" occurred on about 12 December 2008, when rainwater entered the premises by a means which is not specified.

14. The parties agree that each of the inundations resulted from a breach by the lessor of its obligations under various provisions of the lease, and of its concomitant common law duty of care.

15. The lessee suffered damage in the sum of $782,500.00 as a result of the February 2008 and December 2008 inundations. That is the amount which Allianz paid to the lessee in respect of those inundations.

16. The lessee (at the instigation of Allianz) commenced the "primary proceedings" against the lessor seeking damages in respect of all three inundations. GIO, in the name of the lessor, settled the primary proceedings, in respect of the claim for the June 2008 inundation, by paying $650,000.00 to the lessee. The lessee continues to prosecute the primary proceedings to recover, as damages, the amount of $782,500.00 paid to it by Allianz in respect of the February and December 2008 inundations.

Relevant provisions of the lease

17. Clause 8.1 required the lessee to maintain certain insurances. I set it out:

8.1 The Lessee must maintain with insurers and on terms approved by the Lessor (which may not unreasonably withhold its approvals) in the name of the Lessee, the Lessor and any other person named by the Lessor:

(a) public liability insurance for at least the amount in Item 7 (as varied by notice from the Lessor to the Lessee); and

(b) a policy of insurance against property damage (including damage to plate glass);

(c) a workers' compensation insurance policy of unlimited cover in respect of all workers in respect of whom the Lessee may at any time be responsible to pay workers' compensation; and

(d) a policy of insurance in respect of all additions to the premises carried out by the Lessee and all property and all trade and tenants' fixtures at the premises against loss or damage by or in consequence of explosion, fire, flood, lightning, storm and tempest and damage caused by sprinklers or sprinkler leakage or usage (and other usual and necessary risks against which a tenant can and does ordinarily insure) in the full replacement value thereof; and

(e) other insurances which are required by law or which a prudent lessee would take out including, but not limited to, insurance in connection with the Lessee's works on the Premises and insurance of stock;

in connection with the premises.

18. The amount specified in item 7 of the schedule was $20 million.

19. There was some reference made to cl 8.2(a) of the lease. Since I do not think that it goes anywhere, I shall not set it out.

20. Clauses 13.3 and 13.5 related to (among other things) the condition of the premises at the "Commencing Date". I set them out:

Lessor's approval

13.3 The Lessee acknowledges that the Premises were in good condition and repair at the Commencing Date.

...

Structural work

13.5 The Lessee need not carry out structural work unless it is required because of the Lessee's particular use or occupation of the Premises (fair wear and tear excepted) or the act, negligence or default of the Lessee or of the Lessee's Employees or Agents. The Lessor warrants that at the commencing Date the Premises will be structurally sound.

21. Clause 15 imposed various obligations on the lessor, and gave it various rights. Clause 15.12, which deals among other things with repair and insurance, was the subject of debate. I set it out:

15.12 The Lessor covenants with the Lessee that:

(a) it will pay or cause to be paid, all Outgoings, expenses and charges of any kind rated, levied or charged upon the Premises or in respect of the use of the same which have arisen prior to the commencement of this Lease;

(b) the Lessor shall during the period of the tenancy created, herein repair and keep repaired the Premises in respect of all matters and things not otherwise by this Lease expressly required to be carried out by the Lessee;

(c) without limiting the generality of the foregoing and notwithstanding anything to the contrary contained or implied in this Lease, the Lessor covenants and agrees with the Lessee that the Lessor will at its own costs and expense provide at the Commencing Date the following in a proper working condition;

(i) the hot water service;

(ii) all wiring and cabling within the Premises; and

(iii) all plumbing within the Premises; and

(iv) all other fixtures other than the Lessee's Property.

(d) at all times during the Term and any renewal term created herein, respect of the external walls and roof of the Premises and any improvements contained thereon, the Lessor shall:

(i) ensure that the same are kept in proper and substantial repair;

(ii) ensure that the same are adequately insured;

(iii) ensure the doing of all acts, matters and things in respect of the same which may reasonably be required of the Lessor in its capacity as owner of the same; and

(iv) not do or permit to be done anything in respect of the same which shall or might reduce the value of the Lessee of the tenancy created by this Lease.

(e) the Lessor shall keep the Premises weather proof.

Relevant provisions of the Allianz policy

22. The Allianz policy was described as a "Business Pack" policy. It has to be said straight away that the policy is not a masterpiece of clear drafting. The policy provided for some 12 "sections", each dealing with different classes of insurance. Five of those sections were "selected" and the others were "not selected". Of the five that were selected, two - "Business Property Cover" (confusingly referred to as "Fire & Perils") and "Public and Products Liability" - were relevant. Although the latter section was described as section 7, it is in fact section 8.

23. The inundations occurred during two separate policy years. Both policies were in evidence. The parties referred only to the first policy. Argument proceeded on the basis that the policies were, if not relevantly identical, at least not materially different. For those reasons, I have not considered in any way, and do not set out the relevant terms of, the second policy.

24. The Allianz policy referred, in the schedule which appears to form its first page, to the "Insured" as the lessee. The name attributed to the insured was not the full name of the lessee, but nothing turns on this.

25. There were a number of defined terms (or "words with special meaning") in the Allianz policy. They included the following:

"Policy" means this document, the Policy Schedule and any attachment or memoranda affixed and any future documents issued to You which amends the policy wording or Policy Schedule.

"Policy Schedule or Schedule" means the most current Schedule of Insurance or any future renewal Schedule, including any endorsements issued by Us in connection with this Policy.

"We, us, Our, Allianz" means Allianz Australia Insurance Limited AFS Licence No. 234708, ABN 15 000 122 850 of 2 Market Street, Sydney, NSW, 2000.

"You, Your, Yours" means the person(s), companies or firms named on the current Policy Schedule as the "Insured".

26. The general policy conditions included the following:

Other persons or organisations

If any person or entity shall have any interest in the Business Property, We shall protect that interest in the event of a claim, provided that interest is disclosed in Your Business records and You shall have disclosed the nature and extent of that interest to Us at the time of notification of the claim.

Where the separate interests of more than one party in the Business Property are insured under this Policy, any act or neglect of one party will not prejudice the rights of the remaining party or parties, subject to General exclusion 1.d. Wilful acts, and provided that the remaining party/ies shall, within a reasonable time after becoming aware of any act or neglect whereby the risk of loss, damage or destruction has increased, give notice in writing to Us and shall on demand pay such reasonable additional premium as We may require.

...

All persons entitled to claim under the Policy are bound by the terms and conditions of the Policy.

...

Reasonable Care

You must take reasonable precautions to prevent personal injury or property damage as if You were not covered by this Policy ...

...

Waiver of subrogation rights

We may not be liable to pay any benefits under this Policy for loss, damage or liability if You agree or have agreed to limit or exclude any right of recovery against any third party who would be liable to compensate You with respect to that loss, damage or liability however:

(a) We shall waive any rights and remedies or relief to which We are or may become entitled by subrogation against:

(i) any co-insured (including directors, officers and employees);

(ii) any corporation or entity (including directors, officers and employees) owned or controlled by any insured or against any co-owner of the property insured.

...

Bankruptcy or insolvency

In the event that You should become bankrupt or insolvent, We shall not be relieved thereby of the payment of any claims hereunder because of such bankruptcy or insolvency.

27. The lessee's claim under the Allianz policy was brought under section 1, Business Property Cover. Since there is no doubt that section 1 responded to the claim (to the extent that it was paid) it is not necessary to set out the insuring clause. I do however note that, although it is agreed between the parties that the lessee was uninsured in respect of the June 2008 inundation, there is no evidence to show why that was so.

28. Of the various selected sections, only one - section 8 (dealing with Public and Products Liability) - provided cover to entities other than the lessee (or others with interests in the "Business Property" - see at [26] above, [53] below). That section contained its own set of definitions, which were expressed to apply (only) "wherever they appear in this section". Of particular note, the expressions "You, Your, Insured" was the subject of a somewhat confusing extension:

"You, Your, Insured (where used in this section)" means the person(s), companies or firms named on the current Policy Schedule as the 'Insured'. Each of the following is an Insured to the extent specified below:

(a) the Named Insured,

(b) every past, present or future director, stockholder or shareholder, partner, proprietor, officer, executive or Employee of the Named Insured (including the spouse of any such person while accompanying such person on any commercial trip or function in connection with the business) or volunteers while such persons are acting for or on behalf of the Named Insured and/or within the scope of their duties in such capacities.

...

(e) every person, corporation, organisation, trustee or estate to whom or to which the Named Insured is obligated by reason of law, (whether written or implied) to provide insurance such as is afforded by this Policy, but only to the extent required by such law, and in any event only for such coverage and limits of liability as are provided by this Policy.

...

(i) every party including joint venture companies and partnerships to whom the Named Insured is obligated by virtue of any contract or agreement to provide insurance such as is afforded by this Policy; but only to the extent required by such contract or agreement and in any event only for such coverage and limits of liability as are provided by this Policy.

29. The insuring clause reads as follows:

What You are covered for

We agree (subject to the terms, Claims conditions, General Policy conditions, Exclusions, definitions and Limits of liability incorporated herein) to pay to You or on Your behalf all amounts which You shall become legally liable to pay as Compensation in respect of:

1. Personal Injury, and/or

2. Property Damage; and/or

3. Advertising Injury;

happening during the Period of Cover within the Geographical Limits and caused by or arising out of any Occurrence in connection with Your business.

30. There were two exclusions that were said to be relevant, namely exclusions 1 and 13. I set them out:

What You are not covered for under this Section

We do not cover any liability:

1. Property owned by You

...

13. Property in Your physical or legal control

(a) for damage to property owned by, leased or rented to You;

(b) for damage to property not belonging to You but in Your physical and legal control other than the property described in 'Additional benefit - Property in physical and legal control'.

First question: the proper construction of cl 8.1

The parties' submissions

31. Mr Alexis of Senior Counsel, who appeared with Mr Carolan of Counsel for the lessee and Allianz, submitted that the apparently wide words of cl 8.1 of the lease should be read in conjunction with all other relevant provisions of the lease, including, in particular, cl 15.12. He submitted that, on the proper construction of cl 8.1, it did not include the insurances required to be effected by the lessee to extend to "the very subject of the lessor's insurance obligation under cl 15.12(d)" (written submissions at [5]). Indeed, he submitted, it was apparent from cl 15.2(d) that the parties intended that it would be the lessor's responsibility to effect adequate insurance for "the external walls and roof of the Premises" and "any improvements contained thereon".

32. Further, Mr Alexis submitted, the subject matter of cl 8.1 was insurance "covering the liability of the lessor and the lessee to the public and insurance covering the premises, including any fixtures, fittings and contents" (written submissions at [6]).

33. Mr Weinberger of Counsel, who appeared for the lessor and GIO, submitted that there was no reason to read down the wide words of cl 8.1. In particular, he submitted, the allocation of responsibility for insurance was not related to or consequent upon the allocation of responsibility for the state of the premises.

34. Thus, Mr Weinberger submitted, each of paras (a), (b), (d) and (e) of cl 15.12 was sufficient to impose on the lessee an obligation to effect insurance in its name and in the name of the lessor of a kind which would entitle the lessor to indemnity in respect of the lessee's claims arising out of the February and December 2008 inundations.

35. He submitted that if (as Allianz submitted) the Allianz policy did not do this, then the lessee was in breach of its obligations under cl 8.1 and its claim against the lessor in respect of those inundations would be met by a defence of circuity of action.

Decision

36. I take as a convenient starting point the oft-cited words of Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99 at 109:

.... the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust...

37. The lessor's obligations under cl 15(d), (e) were of course owed to the lessee. Plainly enough (and as has happened in this very case), breaches of those obligations might cause the lessee substantial loss. However, cl 15.12 did not oblige the lessor to effect insurance in respect of such loss, or insurance indemnifying it against its liability to pay damages for any breach of cl 15.12(d), (e). The only insurance that the lessor was required to effect was of "the external walls and roof of the Premises and any improvements contained thereon".

38. Presumably, this requirement was intended to ensure that if the premises were damaged by some external cause, the lessor would be recouped for the cost of repair from the insurance thus required to be effected, and, following repair, the lessee would have the continuing benefit of use and occupation of the premises. In this context, it may be noted that cl 18 of the lease dealt with the subject of damage to the premises. As one might expect, that clause provided for rent to abate (in whole or in part) pending repair. It provided, further, that if the premises were irreparable (or, being capable of repair, were not repaired within a reasonable time), the lease might be terminated.

39. There is no necessary overlap between cls 8.1 and 15.12, in the sense that compliance with the insurance obligations imposed by each clause must necessarily lead to a situation of double insurance. It would have been possible (although perhaps commercially unwise) for the lessor to comply with its insurance obligations under cl 15.12(d) in a manner which did not entitle it to indemnity against the consequences of breach of its obligations under cl 15.12(d), (e).

40. The plain words of cl 8.1 require that each of the insurances to be effected by the lessee pursuant to it should be effected in its name and (relevantly) in the name of the lessor. It is obvious why (for example) the lessor would be concerned to ensure that at all times there existed, for its benefit, adequate public liability insurance in respect of the premises. It is perhaps not so obvious why the lessor would be concerned to ensure that at all times there were in place insurances of the kind referred to in paras (d) and (e). But that was what the parties bargained for. Further, they bargained for those insurances to be in the names of, among others, the lessor and the lessee. It does not seem to me to be profitable to speculate on why it was that the lessor required such insurances to be effected and maintained on the basis that it would be named as an insured. The simple fact is that it did require this, and that the lessee agreed to comply.

41. An insurance policy covering, in the names of the lessor and the lessee, the lessor's "property and... trade and tenants' fixtures at the premises against loss or damage by or in consequence of... storm and tempest" could only benefit the lessor in the event that such property or fixtures suffered damage for which the lessor might be legally liable. The same may be said in relation to insurance of stock; likewise, insurance "in respect of Lessee's works on the Premises".

42. It follows, in my view, that:

(1) the insurance cover for which the lessor bargained (in cl 8.1) included cover of a kind that could only benefit the lessor if it had some liability for the loss against which such insurance was required to be effected; and

(2) quite apart from any general law obligations, cl 15.2(d), (e) provided contractual bases for the imposition of such liability.

43. That is the bargain that the parties struck. Even if it might be appropriate to characterise that bargain as "capricious or unreasonable", the Court is not entitled to remake it on that account.

44. Nonetheless, a characterisation of the bargain in those terms should lead to the search for some alternative meaning, or perhaps some reading-down of the provisions of cl 8.1. But (for example) how would paras (d) and (e) be read down, so as to exclude from the scope of the insurances required by them to be effected, loss or damage caused by a breach of the lessor's obligations under cl 15.12, or to which such a breach contributed? No doubt, as a matter of construction, some such words could be implied but the result would be that the lessee was required to effect insurances, in the name of (among others) the lessor, in the subject matter of which the lessor had no commercial interest or concern whatsoever.

45. If the insurance obligations under cl 8.1 were read in the way for which Mr Alexis contended, then the parties' bargain would be one which required the lessee to do something which, whilst no doubt commercially prudent, was otherwise of no interest whatsoever to the lessor.

46. In those circumstances, it does not seem to me that the Court is justified in doing anything other than giving effect to the plain meaning of the words chosen by the parties.

47. For those reasons, I conclude that question 1 should be answered "yes". That is sufficient to dispose of the primary proceedings - those brought by the lessor against the lessee - in favour of the lessee.

Second question: waiver of subrogation

The parties' submissions

48. Mr Alexis noted that the Allianz policy was divided into numerous sections. He submitted, correctly, that the definitions in section 8 of the policy (dealing with public and products liability) were expressed to be applicable only to that section. It followed, he submitted, that the lessor would only become an "Insured" for the purposes of section 8 if, on the proper construction of cl 8.1 of the lease, the lessee was required to effect such insurance on behalf of the lessor.

49. In any event, Mr Alexis submitted, the waiver of subrogation clause had no effect. He submitted that a "co-insured" could only be someone who was an "Insured" for the purposes of the policy generally. Since (as appeared to be common ground) section 8 would not respond to any claim by the lessee for indemnity against the consequences of the inundations, it followed, he submitted, that the waiver of subrogation clause was inapplicable to the claim actually made.

50. Mr Weinberger submitted that anyone entitled to indemnity under any section of the policy was for all purposes a "co-insured". He submitted that the expression "co-insured" was directed simply at the identification of those against whom the insurer waived its right of subrogation, not with the extent of their interest insured.

51. Mr Weinberger relied on 3 intermediate appellate decisions:

(1) Woodside Petroleum Development Pty Ltd v H&R-E&W Pty Ltd (1999) 20 WAR 380;

(2) GPS Power Pty Ltd v Gardiner Willis & Associates Pty Ltd [2000] QCA 495; (2001) 11 ANZ Insurance Cases 61-482; and

(3) Larson-Juhl v Jay West [2001] NSWCA 260; (2001) 11 ANZ Insurance Cases 61-499.

Decision

52. What Allianz waived were "any rights and remedies or relief to which [it was or might] become entitled by subrogation against... any co-insured". The word "co-insured" was not defined. However, it was expressly stated to include "directors, officers and employees" - presumably, of the lessee - as the "Insured".

53. Directors, officers and employees were not "co-insured" by virtue any general provision in the Allianz policy. As I have said, the Insured was said to be the lessee. The general definition of "You, Your, Yours" (not the specific definition of some of those words appearing in section 8) made it clear that, leaving section 8 aside, the only entities entitled to indemnity under the policy were the lessee, and other persons or entities having an interest in the "Business Property". Clearly enough, such persons or entities might be properly be described as "co-insured".

54. For directors, officers and employees to qualify as "co-insured", there must be some provision in the policy justifying that description of them. Such a provision occurs in section 8, in the definition, specific to that section, of "You, Your, Insured...": specifically, para (b).

55. Thus, the waiver of subrogation clause itself requires one to look beyond the general provisions applicable to all sections of the policy, to provisions said to be applicable only for the purposes of section 8, to justify the description of directors, officers and employees as examples of who might be "co-insured".

56. It seems to me to follow, inevitably, that it is also legitimate to look to section 8 to find other examples of entities that could be properly be described as "co-insured".

57. Among those designated as "You, Your, Insured..." for the purposes of section 8 are parties "to whom the Named Insured is obligated by virtue of any contract or agreement to provide insurance such as is afforded by this Policy" (para (i)). That seems to me to be inconsistent with the thrust of Mr Alexis' submission, because it directs attention not only to insurance cover of the kind afforded by section 8 of the policy but, more generally, to the policy as a whole (see the definition of "Policy" at [25] above). The cover that is afforded to the lessor is only that for which section 8 of the policy provides, but that does not detract from the point. The same can be said of the cover afforded to directors etc.

58. In those circumstances, I conclude that as a matter of a construction of the policy, the lessor is a "co-insured" for the purposes of the waiver of subrogation clause.

59. It is thus unnecessary to discuss in detail the three decisions on which Mr Weinberger relied. I should however record that in my view the conclusion that I have reached, as a matter of construction of the policy, is consistent with the reasoning in each of those decisions. In particular, and adapting the language of Ipp J (with whom Malcolm CJ and Pidgeon J agreed) in Woodside at 391 - 392, the waiver of subrogation clause should not be limited so as to be "commensurate with the cover": that is to say, limited to claims in respect of losses against which the co-insured were entitled to be indemnified. That proposition is supported also by the reasoning of Williams J (with whom de Jersey CJ agreed) in GPS Power at [39], [40].

60. Further, in this context, I note that if the waiver of subrogation were held to be co-extensive with the entitlement to indemnity under the policy, then it would be unnecessary, for the reasons given by Ipp J in Woodside at 392-393, by Williams J in GPS Power at [47] and by Handley JA (with whom Stein JA and Ipp AJA agreed) in Larson - Juhl at [15]. One would not impute to the parties to an insurance contract the intention to strike a bargain, as to waiver of subrogation, that was devoid of application.

61. For those reasons, the second question should be answered "yes". That conclusion provides an alternative foundation for a judgment in the primary proceedings for the lessee against the lessor.

Third question: contribution

The parties' submissions

62. Mr Alexis submitted that, consistent with his approach to the second question, the lessor was not a co-insured, and thus that no question of contribution could arise.

63. Mr Alexis submitted further and in any event that the effect of exclusions 1 and 13 in section 8 was that the lessor, if otherwise insured under section 8, was not entitled to recover. That followed, he submitted, because the reference to "You" and "Your" in each of those exclusions was a reference (only) to the lessee.

64. Mr Weinberger submitted that the words could not be limited in that way, at least for the purposes of section 8. He relied, in particular, on usages of one or other of those words in a way which indicated that they could not be confined to the lessee: for example, in the provisions relating to "reasonable care" and "bankruptcy or insolvency".

Decision

65. The insuring clause in section 8 focuses on payment "to You or on Your behalf" of "all amounts which You shall become legally liable to pay...". For the purposes of section 8, those words have a special, and wider, meaning than they do elsewhere in the policy.

66. If the word "You" is read as limited only to the lessee (the "Named Insured"), the insuring clause would not extend cover for the benefit of those whom, clearly, were entitled to the benefit of insurance under section 8. Thus, the insuring clause must be read (as, clearly, the special definition requires) so that "You" refers not only to the "Named Insured" but also to all those who, for the purposes of section 8 and subject to the limitations in it, might be entitled to indemnity.

67. It seems to me that exclusions 1 and 13 should be read similarly. Thus, trying to make sense of section 8 as a whole, and reading its various provisions together and harmoniously, the exclusions apply only where the property in respect of which the claim is made is owned by (or leased or rented to, or in the physical or legal control of) the entity making the claim.

68. That construction gives the word "You" a consistent meaning in the whole of section 8. That is necessary to give effect to the insuring clause. Reading it in that fashion also gives content to the exclusions. It does so by enabling their evident purpose - that cover under section 8 does not entitle an Insured (for the purposes of section 8) to be indemnified for loss of or damage to its own property - to be maintained.

69. For those reasons, the exclusions do not apply.

70. For the reasons that I have given in connection with the first and second questions, the lessor was entitled to be indemnified, under section 8 of the Allianz policy, for the consequences of (among other things) the June 2008 inundation. That was the very liability in respect of which GIO indemnified the lessor, by making payment of the sum of $650,000.00 to the lessee. It follows that GIO is entitled to contribution from Allianz, and thus that question 3 should be answered "yes". The agreed result flowing from that answer is that GIO is entitled to judgment accordingly.

Orders

71. I make the following orders:

(1) Direct entry of judgment for the defendants against the plaintiff in proceeding 2008/288314;

(2) Direct entry of judgment for the plaintiff against the defendant in the sum of $325,000.00 inclusive of interest in proceeding 2011/96744.

(3) Make no order as to costs in either proceeding;

(4) Order that the exhibit be handed out.

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