Federal Court of Australia

Hassall Developments Pty Ltd (Receivers and Managers Appointed) (in liq) v QBE Insurance (Australia) Limited [2026] FCA 562

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rr 9.02(1) and 9.05(1) of the Federal Court Rules 2011 (Cth) (FCR), the Applicant has leave to join Arthur J. Gallagher & Co (AUS) Limited (ACN 005 543 920) to the proceeding.

2.    Pursuant to r 16.53(1) of the FCR, the Applicant has leave to file and serve by 4pm on 7 May 2026 the draft amended originating application in the form circulated to the Respondent on 28 April 2026 and draft amended statement of claim in the form exhibited to the affidavit of Michelle Fox dated 17 April 2026.

3.    Pursuant to r 20.15 of the FCR, the Respondent to give discovery of the documents within categories 1 to 4 of set out in Annexure A to the Interlocutory Application dated 17 April 2026 by 4pm on 21 May 2026, together with a list of documents verified in accordance with rule 20.17 of the FCR.

4.    The matter be listed for a case management conference at 9.30am on 13 May 2026.

5.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore, Revised from transcript

JACKMAN J:

1    By interlocutory application filed 17 April 2026 the applicant (Hassall Developments) seeks:

(a)    leave to file a second amended statement of claim joining its former insurance broker Arthur J. Gallagher & Co (AUS) Limited (Gallagher) as second respondent; and

(b)    orders for further discovery against the respondent (QBE) of four categories of documents.

2    A threshold issue in the case is when cover was bound. Hassall Developments contends this was 19 July 2022 or, alternatively, 20 July 2022; QBE contends that this was 12 August 2022. By its amended defence, QBE contends that confirmation on 19 July 2022 by Ms Pigram of cover “effective 19/07/2022” was confirmation of “holding or interim cover” only.

3    On 25 February 2026 I ordered that a separate question be determined at a hearing commencing 1 June 2026 (the Separate Question Hearing) in respect of:

(a)    whether QBE is entitled pursuant to s 28(3) of the Insurance Contracts Act 1984 (Cth) to reduce any liability to nil;

(b)    whether QBE engaged in misleading or deceptive conduct in connection with its 19 July 2022 confirmation of cover;

(c)    if so, whether, but for that alleged contravention, Hassall Developments would have bound ISR cover on 19 or 20 July 2022; and if so, whether QBE would nevertheless have been entitled to reduce its liability to nil under s 28(3).

4    Hassall Developments submits that QBE’s characterisation of its 19 July 2022 communication has evolved in the period since Hassall Developments first sought indemnity. Successively:

(a)    in pre-litigation correspondence dated 27 September 2023, QBE solicitors stated:

Cover was provided from 19 July 2022 under the auto-cover scheme;

(b)    in its initial defence filed 11 December 2024, QBE denied that any cover was bound on 19 July 2022 alleging that a contract of insurance was not entered into until 12 August 2022; and

(c)    in the amended defence, QBE alleges, for the first time, an oral agreement between Ms Pigram and Mr Collins (the latter on behalf of Gallagher) for the provision of “hold cover” from 4 pm on 19 July 2022 pending offer and acceptance (an agreement said to have been made outside the QBE underwriting guide).

5    QBE served its evidence in support of its amended defence on 16 and 17 March 2026. It appears to have been the service of that evidence that has prompted the present application, although QBE submits that Hassall Developments should have appreciated the likely contents of that evidence from its amended defence filed in late 2024. Hassall Developments submits, and I accept, that the latest iteration of QBE’s response to Hassall Developments’ claim would, if established, cast in a new light issues concerning the performance by Gallagher of its services as Hassall Developments’ broker.

6    Hassall Developments submits that the alleged oral agreement for the provision of interim cover was not disclosed to Hassall Developments, and no advice was provided to Hassall Developments as to its impact on the duration of its duty of disclosure. I make no findings on those matters, but note that they constitute Hassall Developments’ contentions. Those matters also raise questions as to whether Gallagher:

(a)    should be afforded the opportunity to adduce evidence on the question of what occurred on 19 July 2022; and

(b)    should be bound by that determination.

7    Rule 9.02(1) of the Federal Court Rules 2011 (Cth) (the Rules) provides as follows:

9.02 Joinder in proceedings involving common questions etc.

(1)    Two or more persons may be joined (as applicants or respondents) in any proceeding:

(a)    if separate proceedings by or against each of them would give rise to a common question of fact or of mixed fact and law; or

(b)    if all rights to relief claimed in the originating application are in respect of, or arise out of, the same transaction or series of transactions; or

(c)    by leave of the Court.

8    Rule 9.05(1) of the Rules provides as follows:

9.05  Joinder of parties by Court order

(1)    A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:

(a)    ought to have been joined as a party to the proceeding; or

(b)    is a person:

(i)    whose cooperation might be required to enforce a judgment; or

(ii)    whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or

(iii)    who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

9    The court’s exercise of discretion is informed by the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Avoiding a multiplicity of proceedings and the risk of inconsistent findings serves that purpose, noting that avoiding a multiplicity of proceedings is expressly recognised in the text of r 9.05(1).

10    QBE submits that the joinder of Gallagher is not necessary in order to decide the dispute between Hassall Developments and QBE. Even if that is so, the joinder of Gallagher, in my view, is desirable. The applicant’s alternative claims against Gallagher arise from the same transaction or series of transactions as found in the existing claims against QBE. Further, what was said as between Ms Pigram of QBE and Mr Collins of Gallagher on 19 July 2022, and what was or was not disclosed to QBE, will need to be determined in order to decide Hassall Developments’ claim against QBE and its proposed claim against Gallagher.

11    The nature of the agreement reached on 19 July 2022, and the alleged failure by Hassall Developments to discharge its duty of disclosure, are questions common to both claims. While it will be open to Hassall Developments to subpoena Mr Collins to give evidence at the Separate Question Hearing without joinder of Gallagher, that approach is suboptimal. As Hassall Developments submits, the following additional matters support the exercise of discretion permitting the joinder of Gallagher:

(a)    joining Gallagher to the proceedings reduces the risk of inconsistent findings in relation to overlapping factual matters of the kind already referred to;

(b)    as substantial issues overlap materially, it is more efficient for the court and the parties to determine them once;

(c)    Gallagher has an interest in the outcome of the determination of the separate question and the proceedings generally, and it is preferable that it be given the opportunity to participate, to the extent it wishes to do so, in the determination of the issues that currently arise in the proceedings. Gallagher’s solicitors, Sparke Helmore, have confirmed instructions to accept service, and the relevant pleadings and evidence have been provided to Sparke Helmore (except for QBE’s evidence which has been withheld as QBE has withheld its consent to the provision of that material).

12    QBE points to the prejudice to it in circumstances where the Separate Question Hearing will very likely be vacated and new dates will have to be set. It is not, as yet, certain that the proposed hearing on 1 to 4 June 2026 will have to be vacated, although if Gallagher does not consent to the hearing taking place at that time, then I will vacate those dates. I have indicated to the parties that I am able to hear the matter in the weeks commencing 10 August 2026 and 26 October 2026, although QBE has indicated that senior counsel currently briefed is not able to appear on those dates. That is a regrettable matter which I take into account, although that prejudice to QBE, in my view, does not outweigh the desirability of joining Gallagher as a party. I will appoint a case management hearing in a week’s time to ascertain the position of Gallagher as to the hearing date and also to review the terms of the separate question to accommodate Gallagher being joined as a party.

13    There is no issue between the parties concerning the proposed categories of discovery sought by Hassall Developments, although QBE has informed me that the fourth category of documents which are sought will yield a nil return. In the interests of formality, I will order that all four categories of documents be provided. Accordingly, I make the above orders.

Associate:

Dated:    6 May 2026