The Duty of Disclosure

Transcription

1 The Duty of Disclosure Martin John Green in his capacity as liquidator of Arimco Mining Pty Ltd (In liquidation) v CGU Insurance Limited [2008] NSWSC October 2008

2 Directors' and Officers' Duties of Disclosure Martin John Green in his capacity as liquidator of Arimco Mining Pty Ltd (In liquidation) v CGU Insurance Limited [2008] NSWSC 875 Directors' and officers' duties have become more onerous in recent times. The conduct of directors has increasingly become the subject of close scrutiny by shareholders, liquidators and regulatory bodies such as ASIC and APRA. The decision of Green v CGU is a timely reminder to directors and officers that when proposing for insurance, they are required to disclose every matter that the insured knows, or a reasonable person in the circumstances could be expected to know, is relevant to the insurer in its decision whether to accept the risk and if so on what terms. If they do not, as this decision demonstrates, directors and officers may find themselves without the benefit of an insurance policy. On 18 August 2008, Justice Einstein of the NSW Supreme Court delivered a significant judgment concerning what is required to be disclosed when proposing for Directors' and Officers' liability insurance. OCTOBER 2008 Sydney contacts Adrian Howie, Partner a.howie@kennedys-law.com.au Penny Taylor, Senior Associate p.taylor@kennedys-law.com.au 1

3 The facts In December 1998, a proposal was submitted to CGU Insurance Ltd for insurance of the directors and officers of Australian Resources Ltd (including its subsidiary, Arimco Mining Pty Ltd). The financial information accompanying the proposal comprised only what was in the ARL Annual Report for the year ended 30 June A question in the proposal asked: "Is there any subsequent information of a material nature not disclosed in the attached financial statements... that could affect the financial position, capital structure or operation of the Corporation?" The answer given was 'no'. On the basis of the ongoing truth and accuracy of the information concerning the Group's financial situation, as disclosed in the Annual Report, CGU offered terms, which were accepted. The policy period commenced on 31 December On 14 March 1999, Martin Green was appointed administrator of ARL, and other ARL Group companies. At a later date Mr Green was appointed liquidator. Following enquiries by the liquidator, he formed the view that Arimco (the operating company within the ARL Group) had been trading whilst insolvent since 1 January 1999 (ie. 1 day after the policy period commenced). Between March and July 1999, CGU was notified of a potential claims circumstance. After detailed investigations, CGU formed the view that there had not been proper disclosure of the ARL Group's true position in the proposal or prior to policy inception (31 December 1998). In particular, CGU considered that the 30 June 1998 Annual Report, and the financial information in that report, did not fairly and accurately reflect the financial position of the ARL Group at the time of policy inception. In February 2001, CGU informed the directors and officers of ARL/Arimco that it declined to indemnify them in respect of a foreshadowed claim by the liquidator for insolvent trading. CGU took the view that in giving the answer "no" in the proposal, there had been nondisclosure of relevant information. CGU took the view that between 30 June and 31 December 1998, there had been a significant deterioration in the financial position and in the operations of ARL/Arimco, and that the Annual Report and financial statements as at 30 June 1998 did not present a fair and accurate picture of the Group's position as at December In December 2004, the liquidator commenced proceedings in the Supreme Court of New South Wales against some directors and officers claiming some $22 million for debts incurred by the ARL Group in the course of insolvent trading. Initially, the liquidator alleged insolvency from 1 January 1999, but that was later amended to 1 February The liquidator also joined CGU in its capacity as the D&O Insurer. 2

4 CGU relied on s.21 of the Insurance Contracts Act 1984 whereby each director of Arimco and ARL owed a duty to CGU to disclose when submitting the proposal every matter known to him (or her), being a matter which: (a) (b) he/she knew to be a matter relevant to the decision of CGU whether to accept and, if so, on what terms; or which a reasonable person in the circumstances could be expected to know to be a matter so relevant. CGU alleged that each of the directors and officers had a duty to make full and accurate disclosure of relevant matters arising after 30 June 1998 and therefore not included in the Annual Report, that affected or could affect the financial position or operation of ARL as at 31 December CGU contended that there was a failure to disclose a large range of matters, including the following: (a) (b) (c) (d) (e) (f) Significant deterioration of the financial position of ARL in November and December Significant adverse changes which occurred at the Group's mines in the second half of The fact that Rothschild, the financier of the ARL Group, had investigated the financial position of the mines and expressed serious concerns about the life of the mines and their value. The fact that Rothschild was intending to undertake a review of the business, and that, if that review was unfavourable, ARL would be required to make payments in 1999 and 2000 which it would be unlikely able to meet. The fact that ARL had been notified that Leighton Contractors Pty Ltd intended to commence legal proceedings claiming some $15 million. The fact that ARL was using funds raised under a rights issue for a specific purpose (exploration) for another purpose (the payment of amounts due to creditors); CGU alleged that had these (and other matters) been disclosed, CGU would not have entered into the policy on the terms it did. In particular, CGU would not have agreed to a $30 million sum insured. Instead, CGU would have offered a sum insured of only $1 million with an insolvency exclusion and by deleting the extended reporting period. CGU alleged that it was entitled to reduce its liability under the policy to nil (s.28 of the Insurance Contracts Act) by reason of non-disclosure. The Duty of Disclosure An insured has two duties in respect to providing an insurer with accurate information as to the risk to be insured, namely: A duty not to misrepresent matters; and A duty to disclose relevant matters. With respect to contracts of insurance which fall within the ambit of the Insurance Contracts Act 1984 (Cth), these duties are reflected in sections 21 and 26 of the ICA. 3

5 In Green v CGU, Einstein J noted that the section 21 test for disclosure was described recently by the High Court in CGU Insurance Limited v Porthouse [2008] HCA 30 in the following terms: "The statutory test for disclosure now to be found in s 21 of the Insurance Contracts Act focuses on the "reasonable insured", not the "prudent insurer", and operates, first, by reference to the actual knowledge of the insured (s 21(1)(a)), and secondly, by reference to what "a reasonable person in the circumstances could be expected to know" (s 21(1)(b)). That latter statutory phrase has been interpreted as meaning that one should take into account only factors which are "extrinsic" to the insured, such as the circumstances in which the policy was entered into, rather than "intrinsic" factors such as the individual idiosyncrasies of the insured. Whilst it is possible to take into account the circumstances of the insured, the ultimate question under s 21(1)(b) turns on consideration of a reasonable person's state of mind, not the insured's state of mind". "A test of disclosure, which operates by reference to both the insured's actual knowledge and the knowledge of a reasonable person in the same circumstances, is calculated to balance the insured's duty to disclose and the insurer's right to information. The insurer is protected against claims where the insured's disclosure is inadequate because the insured is unreasonable, idiosyncratic or obtuse and the insured is protected from exclusion from cover, provided he or she does not fall below the standard of a reasonable person in the same position". Thus the focus is upon the particular insurer, not the "prudent insurer", and it is the decision making process of the particular underwriters which is under consideration. CGU's Evidence CGU's evidence involved a detailed examination of the affairs of ARL in the period July 1998 to March 1999, in an attempt to establish that by the date of policy inception, the situation faced by Arimco was far different from that reflected in the Annual Report accounts. In addition to expert accounting and mining engineering evidence, CGU called evidence from the CGU underwriters who assessed the ARL risk in December The underwriters' evidence was that the financial soundness of the ARL Group and its ability to continue to operate satisfactorily during at least the period of insurance, was a matter of fundamental importance. The underwriters' evidence was that if they had been aware of the significant adverse changes to the mines and the financial position of the group (set out above), they would have accepted the risk but with a much lower sum insured, an insolvency exclusion clause and deletion of the extended reporting period. The Liquidator's Case The liquidator's case was that nothing occurred during the period from July to December 1998 that put the Group into any different position financially from other times during its history. The liquidator alleged that the Group's downfall in March 1999 stemmed from a number of unexpected and unforeseen events in January 1999 (after the policy period had commenced). Therefore, it was alleged, there was nothing relevant to be disclosed to the insurer in December

6 Hence the liquidator's position was that neither limb of the section 21 test was breached. The Multi Stage Process In determining whether each of the matters ought to have been disclosed to CGU, his Honour followed what he described as a multi-stage process and considered the following questions in relation to each factor: (a) did the directors know of the matter? (b) if so, did the directors know that the issue was a matter relevant to the decision of the insurer whether to accept the risk and if so on what terms? (c) if they did not, would a reasonable person in these circumstances be expected to know the issue was so relevant? (d) if either (b) or (c) applied, was the company excused from the need to disclose on the basis of the matters in section 21(2). (e) even if the matters ought to have been disclosed or there had been a misrepresentation, would the insurer have issued the policy on the terms it did in any event? (f) if it would not, what is the liability of the insurer under section 28(3)? The Decision His Honour found that CGU proved its case of non-disclosure and misrepresentation by the company and directors. His Honour found that had proper disclosure been made to CGU, it would have written a policy but included an insolvency exclusion which in the circumstances of these proceedings, would have absolved it from any liability under the policy. His Honour's decision flowed inexorably from a comparison between: (a) (b) on the one hand, the information furnished to CGU in terms of the 1998 Annual Report for the ARL/Arimco Group; and on the other hand, the different financial and operational position faced by the Group by end December His Honour also found that there had been insolvent trading. Findings as to the knowledge of the directors Taking the totality of the evidence into account, his Honour found that the directors were aware, in December 1998, of the great majority of the matters alleged by CGU including: (a) There had been significant adverse changes at a number of the mines; (b) There had been significant adverse changes in the financial position of the Group; (c) The rights issue funds would inevitably need to be used to pay creditors; (d) The Group's financier, Rothschild, had a negative view of the Group's mines and intended to conduct in early 1999 a detailed review of the Group's loan facilities; (e) The operations were behind budget and had gone from profit to loss; (f) There were severe liquidity problems towards the end of 1998; (g) Extended payment terms for some creditors had been exceeded and cheques were being written but not despatched; (h) Leighton had given notice of a claim in the region of $15 million. 5

7 In reaching his decision his Honour noted the submission made by CGU that there was a fundamental tension between the liquidator's proposition that by 1 February 1999, only one month after the policy period commenced, the Group was insolvent, but in the period to 31 December 1998, nothing relevant requiring disclosure had occurred. The liquidator sought to resolve this tension by contending that: (a) there was an unprecedented $5.4 million loss in January 1999; (b) the causes of that loss were unexpected events, namely rain, mechanical and other operational issues at each of the three mines, and fall in the copper price. The Court found, on the evidence, that these contentions could not be supported. Conclusion In summary, Justice Einstein found that had proper disclosure been made to CGU, the insurer would have written a policy with a much lower sum insured, and an insolvency exclusion which in the circumstances, would have absolved the insurer from any liability under the policy. As this case demonstrates, a company's financial position can deteriorate in a short period of time. If the true position, current at the time of the proposal and policy inception, is not disclosed, the insurer is likely to be able to (at least) reduce its liability under the policy. The focus is upon the particular insurer, not the "prudent insurer". As demonstrated in this case, the decision making process of the particular underwriters can come under intense scrutiny. Hence it is very desirable to have clear, current underwriting guidelines and if possible, a note on the file recording why an underwriting decision was reached. Adrian Howie, Partner and Penny Taylor, Senior Associate Kennedys Kennedys (Australasia) Pty Ltd ABN Lawyers Level 31, Citigroup Centre 2 Park Street, SYDNEY NSW 2000 PO Box A65 Sydney South NSW 1235 Australia T F DX Sydney Downtown 6