Allianz Australia Insurance Ltd v Uniting Church in Australia Property Trust - Rectification Application Dismissed

Original Word Document (122.4 KB) Federal Court of Australia

Allianz Australia Insurance Ltd v Uniting Church in Australia Property Trust [2026] FCA 511

| File number(s): | NSD 1050 of 2022 |

| Judgment of: | LEE J |

| Date of judgment: | 28 April 2026 |

| Catchwords: | EQUITY – rectification for common mistake – whether convincing proof of common intention to displace hypothesis arising from execution of policy and to warrant rectification – where evidence failed to establish convincing proof – where purported common intention did not sustain through to execution of policy – application dismissed

INSURANCE – whether policy failed to express apparent agreement that sexual misconduct indemnity limit was separate from professional indemnity limit |

| Legislation: | Evidence Act 1995 (Cth) ss 140(1), 140(2), 191 |

| Cases cited: | Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2020] FCA 1493

Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2021] FCAFC 126; (2021) 396 ALR 193

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 |

| | Heydon JD, Leeming MJ, Turner PG, Meagher, Gummow & Lehane’s Equity: Doctrine s and Remedies (5 th ed, LexisNexis Butterworths, 2014) |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Commercial Contracts, Banking, Finance and Insurance |

| Number of paragraphs: | 71 |

| Date of hearing: | 16 March 2026 |

| Counsel for the applicant: | Mr C Conde |

| Solicitor for the applicant: | HWLE Lawyers |

| Counsel for the first, second, fourth, sixth, seventh, eighth, and ninth respondents: | Mr N D Riordan |

| Solicitor for the first, second, fourth, sixth, seventh, eighth, and ninth respondents: | Clayton Utz |

| Counsel for the third and fifth respondents: | Mr D Weinberger SC |

| Solicitor for the third and fifth respondents: | KCL Law |

ORDERS

| NSD 1050 of 2022 |

| BETWEEN: | ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 00 122 850)

Applicant | |
| AND: | THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) (ARBN 134)

First Respondent

THE UNITING CHURCH (NSW) TRUST ASSOCIATION LIMITED ACN 000 022 480

Second Respondent

THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (VICTORIA) ABN 39 703 442 583 (and others named in the Schedule)

Third Respondent | |

| order made by: | LEE J |
| DATE OF ORDER: | 28 APRIL 2026 |
THE COURT ORDERS THAT:

1. The application is dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1 This is an application by Allianz Australia Insurance Limited (Allianz) for rectification of a professional indemnity insurance policy issued for the period 31 March 2008 to 31 March 2009 (P olicy). Allianz contends that the Policy records the parties’ agreement in a way which does not correspond with their common intention and should be rectified to reflect a sexual misconduct sublimit of $15 million.

2 The respondents, comprising various property trusts and associated bodies of the Uniting Church in Australia (UCA), oppose the application, particularly on the basis that communications subsequent to those relied upon by Allianz, but prior to the execution of the Policy, cast doubt as to the existence of any common intention of the nature asserted by Allianz.

B    RELEVANT PRINCIPLES

3 In Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2020] FCA 1493 (at [111]–[118]), I set out the principles governing rectification suits, which were quoted with apparent approval by the Full Court on appeal: Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2021] FCAFC 126; (2021) 396 ALR 193 (at 263–265 [270]–[271] per Allsop CJ, Besanko and Middleton JJ). While those principles do not require significant exposition, it is helpful to identify and explain some of them in the present context. Authority for the propositions that follow can be found in my earlier reasons.

4 The purpose of the equitable remedy is merely to reform the instrument in which the parties have mistakenly expressed their intention. Put another way, the purpose is to make the instrument conform to the true agreement of the parties where the writing, by common mistake, fails to express that agreement accurately: Icon Co (at [111]).

5 As to the ascertainment of the common intention necessary to ground relief by rectification, if the conduct and/or correspondence between the parties demonstrates an absence of an objective common intention, then that evidence must be taken in conjunction with the evidence (if any) of their subjective states of mind: Icon Co (at [112]).

6 Indeed, in cases where the outward expression of the parties’ common intention is inconclusive, then establishing that the subjective states of mind of the parties evinces the relevant common intention becomes critical if the necessary standard of proof to support an order for rectification is to be achieved: Icon Co (at [112]).

7 Of course, where the correspondence and/or conduct establishes the necessary common intention, then assertions by the party opposing rectification as to their subjective state of mind which is inconsistent with that party’s outward manifestation of their intention, being unexpressed and uncommunicated, is unlikely to displace their expressed intention: Icon Co (at [112]).

8 There is no requirement for communication of common intention by express statement, but it must at least be the parties’ actual intentions, viewed objectively from their words or actions, and must be correspondingly held by each party: Icon Co (at [113]).

9 As to the establishment of a common intention, the authorities are replete with admonitions that evidence necessary to discharge the onus of proof needs to be convincing. Another formulation is that “clear and convincing proof” is necessary to succeed in a claim for rectification: Icon Co (at [114]–[115]). Equity has always insisted upon “strict” proof in rectification cases, reflecting the ancient concern not to undermine the integrity of agreements. Of course, I recognise that like with any other civil proceeding in this Court, this is a case where the requirements of proof are governed by application of Part 4 of the Evidence Act 1995 (Cth) (EA). The tribunal of fact must find the case of an applicant for rectification proved if it is satisfied that case has been established on the balance of probabilities. That said, the nature of the equity (or to use the words of s 140(2)(a) EA, the “nature of the cause of action”) is to be “take[n] into account” in deciding whether a court has been satisfied in accordance with the statutory standard provided for in s 140(1) EA. For completeness, I note that although s 140 speaks in terms of a “cause of action”, there is no definition of this concept (historically drawn from the common law) as including claims in equity’s exclusive jurisdiction. But given the breadth of the definition contained in the Dictionary of “civil proceeding” (which “means a proceeding other than a criminal proceeding”), the evident statutory intention is to include any type of civil claim, including those that historically were the exclusive province of equity.

10 In any event, there is no doubt the power to order the equitable remedy of rectification is “one which should be used with extreme care and caution”: Icon Co (at [114]). Indeed, in considering the nature of the equity of rectification, it is important to keep in mind the inherent unlikelihood that commercial persons would have formed a common intention which is not embodied in the agreement which they deliberately reduced to writing and saw fit to execute: Icon Co (at [117]). As the alleged common intention ex hypothesi contradicts the written instrument, convincing proof is required to counteract the cogent evidence of the parties’ intention manifested in the instrument itself: Icon Co (at [117]).

11 Importantly, and as will become apparent, this is a case where the applicant seeks to establish that the common intention to which the instrument is to be rectified was reached prior to entry into the instrument. The allegation is not that the parties’ common intention ceased to be common prior to the execution of the instrument (see Heydon JD, Leeming MJ, Turner PG, Meagher, Gummo w & Lehane’s Equity: Doctrine s and Remedies, 5 th ed, LexisNexis Butterworths, 2014 at [27-075]–[27-080]). The entitlement to rectification therefore has a temporal limitation; the common intention which the parties reached must be sustained until the instrument is executed: Icon Co (at [114]).

C    THE EVIDENCE

C.1    Allianz’s Evidence

12 In support of its case, Allianz relies on [5] and [7]–[9] of Schedule 3 to the Agreed Background Facts document filed in related proceeding NSD 1144 of 2019, particularly to counteract the contention that it ought to have called Clinton Ruddick, a National Financial Lines Manager at Allianz.

13 None of those facts was formally an “agreed fact” within the meaning of s 191 of the EA in the present proceeding, however, they were undisputed and each party proceeded on the basis they generally ought to be accepted. They are as follows:

5.    Ms Smith is aware that during the period 31 March 1999 to 31 March 2011, Allianz issued a series of professional indemnity insurance policies to, among others, the Uniting Church in Australia (UCA) and the first respondent. That period of insurance is referred to below as the “ period of insurance cover ”.

…

Involvement with the UCA account

7.    Ms Smith did not have any involvement with the UCA account during the period of insurance cover. She had involvement after that time.

8.    Ms Smith is aware from her review of documents relating to the UCA account that the following underwriters were responsible for the management of the UCA account, including assessing the overall risk and the terms upon which Allianz was prepared to offer insurance to the UCA and the UCPT:

(a)    Stephen Armstrong;

(b)    Peter Backe-Hansen;

(c)    Michael Sealy;

(d)    Clinton Ruddick;

(e)    Peter Hawke;

(f)    Peter Button;

(g)    Grahame Willis;

(h)     Paul Hughes; and

(i)     Marinko Tulich.

9.    All of these underwriters are no longer employed by Allianz.

14 Allianz also relies principally on five documents to demonstrate that the Policy records the parties’ agreement in a way which does not correspond with their common intention. Those documents are as follows.

15 First, the Policy itself, and particularly, the Policy Schedule which appears on the second page of the Policy. Allianz identifies that while the Policy Schedule records the “Limit of Indemnity” as “$25,000,000.00 any one claim and in the aggregate”, a table appears immediately below it, under the heading “Reinstatement”, which records a limit of $15,000,000 for “Sexual Abuse” with “Nil” reinstatements. For reasons which will become apparent, it is important to note that the Policy was executed on 8 July 2008.

16 Secondly, a “Marsh presentation” dated 19 March 2008 and entitled “[UCA] – NSW Synod: 2008-2009 Insurance Renewal”. Marsh Pty Ltd (Marsh) was UCA’s insurance broker. Relevantly, the presentation includes a slide headed “Professional Indemnity Allianz 2008 Renewal Terms”, which contains a table. In the first row of that table, under the word “Limit”, there are two items in a dashed list: “Professional Indemnity” and “Sexual Misconduct”. In the relevant columns, there is an expressed limit of $15 million for “Professional Indemnity” as well as a limit of $15 million for “Sexual Misconduct”.

17 Thirdly, an email dated 26 March 2008 from Scott Driscoll (Insurance Manager, Uniting Resources – Property Services, Uniting Church NSW Synod) to Bob Tainsh and Bernard Dennis of Marsh, copying UCA colleagues, with the subject “Renewal”. In that email, Mr Driscoll states, “[j]ust confirming our position … Sexual Misconduct – $15m”. It concludes by stating “[p]lease bind covers if Vic/Tas agree …”.

18 Fourthly, an email from Mr Dennis of the same day with the subject “UCA, NSW/Northern Synods – Renewal of National Insurance Program – 31 March 2008/2009”, which was addressed to other representatives of Marsh. In that email, Mr Dennis confirmed that Scott Driscoll had provided renewal instructions, set out those instructions, and stated, “[w]ith the exception of the BI Indemnity Period, the instructions are subject to the Vic/Tas Synod being in agreement…”. Those instructions were as follows:

…

Professional Indemnity – renew with Allianz:

• Increase the limit of liability from $15m to $25m.

• The limit of liability in respect of Sexual Misconduct remains $15m for the time being pending the outcome of discussions between Allianz/SwissRe concerning reinsurance support for an increase to $25m.

19 Fifthly, an insurance placement advice dated 31 March 2008 and prepared by Marsh on behalf of the UCA. It provided for a limit of indemnity of “25,000,000 any one claim plus one automatic reinstatement, except $15,000,000 aggregate for Sexual Misconduct” (31 March 200 8 Placement Advice). That is the language Allianz contends should be inserted into the Policy by way of rectification.

C.2    The Respondents’ Evidence

20 For reasons unnecessary to explain, the third and fifth respondents were represented separately by counsel from the first, second, fourth, sixth, seventh, eighth and ninth respondents (other respondents).

21 The third and fifth respondents focus predominantly on challenging the probative force of the five documents principally relied upon by Allianz. The other respondents followed suit, but also identified further email communications from March and April 2008 which are not referred to by Allianz. Those email communications were as follows.

22 First, an email dated 6 March 2008 from Tim Atkins (Assistant Manager – Insurance Services of UCA Synod of Victoria and Tasmania) to Mr Driscoll, copying Marsh and UCA colleagues. In this email, Mr Atkins informs Mr Driscoll that:

I understand Peter Taylor is to get back to us on the costing for raising the PI limit to $25 million including Sexual Abuse.

23 Mr Taylor was a representative of Marsh. The other respondents contend that Mr Atkins’ email did not record a concluded position and demonstrates the applicable limit of the indemnity was, at this time, the subject of ongoing negotiation.

24 Secondly, an email dated 26 March 2008 from Mr Ruddick of Allianz to Catherine McKay of Swiss Re, stating Marsh had requested if Swiss Re could “provide any additional molestation capacity … potentially for a new limit of $25Mill on the PI”. Relevantly, Swiss Re was one of Allianz’s reinsurers for the UCA professional indemnity risk.

25 Third ly, an email dated 28 March 2008 from Alexia Carroll (of Hannover Re) to Mr Ruddick regarding a quote for professional indemnity reinsurance coverage for the UCA risk. In that email, Ms Carroll set out Hannover Re’s offer terms, including cover at a premium of $50,000 plus GST on the basis that sexual molestation claims would be excluded from its layer. Ms Carroll indicated in her email that she “will seek approval again for cover for molestation and come back to you on Monday with our terms which will include molestation cover”.

26 Fourthly, an email that Andrew Parker of Hannover Re sent to Mr Ruddick at 9:40am on 31 March 2008, referring to Mr Ruddick’s discussions with Ms Carroll, and confirming that “an option not to exclude molestation from our quote below [(of 28 March 2008)] the premium would be $70,000 less 7.5% exchange commission to Allianz”. That is, the quoted price of the premium increased to account for the non-exclusion of molestation.

27 Fifthly, an email which Mr Ruddick sent to Ms Carroll, copying Mr Parker, at 9:50am on 31 March 2008 stating, “[p]lease bind cover on this risk WEF today”. Mr Ruddick’s email responded to Ms Carroll’s email of 28 March 2008 rather than Mr Parker’s email of 31 March 2008 (see ] above). That prompted Mr Parker to respond, thanking Mr Ruddick for his continued support and confirming cover had been “bound effective today” and noting that a placing slip would follow.

28 Sixthly, an email sent at 10:01am on 31 March 2008 from Mr Ruddick to Mr Taylor, attaching the signed placing slips for UCA and confirming that he had “just received this morning a quotation from Hannover Re for the Molestation coverage on the layer $5mill xs $20mill at an additional $30k”. The other respondents contend that this email reflects that Mr Taylor had, consistently with the understanding of Mr Atkins and Mr Driscoll (see ] above), sought costing from Allianz for raising the applicable limit for sexual misconduct claims and that, at least from the perspective of Marsh, Allianz had been approaching the reinsurance market for quotations in respect of this cover and that a concluded position had not yet been reached. I accept this is an accurate explanation of the evidence.

29 Seventhly, an email that Mr Dennis sent to Mr Driscoll at 4:00pm on 31 March 2008, which was as follows:

Scott,

I am pleased to confirm that, in accordance with your instructions, coverage has been placed for the NSW/ACT and Northern Synods under your National Insurance Program[me] for the period 31 March 2008/2009.

…

The limit of indemnity under the policy has been increased from $15m to $25m with the exception of Sexual Misconduct coverage which remains at $15m. We are awaiting the outcome of discussions between Allianz and their reinsurers in regard to the possibility of increasing the Sexual Misconduct limit to $25m.

30 The other respondents contend that, notwithstanding the first paragraph of this email, the terms of the professional indemnity cover had not been concluded as at 31 March 2008. This is because Mr Dennis was awaiting confirmation from Allianz as to the outcome of its discussions with their reinsurers regarding the proposal to increase the sexual misconduct limit to $25 million.

31 Eighthly, an email that Mr Ruddick sent to Ms McKay (of Swiss Re) on 31 March 2008 at 4:39pm, seeking confirmation of the “renewal of the two layers quoted”. The email attached a quote from Swiss Re which bore Allianz’s stamp and the handwritten instruction “please incept”. Indeed, the particular limit offered by Swiss Re to Allianz for sexual misconduct is not apparent on the face of the quotation. The quote sought confirmation of “wording” for sexual molestation cover.

32 Ninthly, an email from Ms McKay to Mr Ruddick (responding to the email referred to above at ]) on 31 March 2008 at 5:11pm, confirming Swiss Re had bound cover in accordance with the quote attached to Mr Ruddick’s earlier email.

33 Tenthly, an email that Mr Dennis sent to Mr Driscoll on 1 April 2008. Mr Dennis stated:

Scott,

With the placement of the national insurance program[me] fo r 2008/2009 now finalised, there remain a few matters which still need to be addressed:-

…

Professional Indemnity:

Allia n z continue [s] to seek support in the reinsurance market for an increase in the limit of indemnity for Sexual Misconduct from $15m to $25m. I hope to be able to advise you further in this regard in the near future.

I would remind you that in regard to the existing placement, there is one reinstatement of the limit of indemnity following a PI claim but there is no reinstatement applicable in respect of Sexual Misconduct claims.

(Emphasis added).

34 Eleventhly, an email that Mr Taylor sent to Mr Ruddick later that day, enquiring about the status of discussions with Hannover Re. There was no response to this email in evidence.

35 Twelfthly, a facsimile that Ms Carroll sent to Mr Ruddick on 7 April 2008, enclosing the Hannover Re placing slip. The premium is stated to be $50,000 plus GST, but makes no provision for the exclusion of sexual molestation claims notwithstanding the terms of the quote referred to at ] above.

D     CONSIDERATION

36 As I observed above (at ]), the entitlement to rectification in the present circumstances has a temporal limitation; the common intention which the parties reached must be sustained until the instrument is executed. The evidence suggests there is an insufficient basis for affirmatively concluding that the common intention for which Allianz contends did sustain through to the Policy’s execution on 8 July 2008.

D.1    The 6 March 2008 Email

37 It will be recalled that Mr Atkins noted in his email of 6 March 2008 that “I understand Peter Taylor is to get back to us on the costing for raising the PI limit to $25 million including Sexual Abuse” (see ]).

38 This early communication from a representative of the UCA Synod of Victoria and Tasmania to a representative of the UCA Synod of NSW makes clear that from the outset of the 2008 renewal process, the respondent’s desired position was a unified $25 million “professional indemnity” limit that included sexual abuse claims.

D.2    The “Marsh presentation”

39 Mr Conde rightly contended during the hearing that the Marsh presentation was probably Allianz’s strongest document. It identifies a limit of $15 million for sexual misconduct claims distinct from a limit of $15 million for professional indemnity claims:

| | 07-08 | 08-09 | 08-09 Option |
| Limit

• Professional Indemnity

• Sexual Misconduct | $15 Million

$15 Million | $15 Million

$15 Million | $25 Million

$15 Million |
40 While this evidence tends to suggest an objective intention of a standalone limit of $15 million for sexual misconduct claims as of 19 March 2008, it cannot be considered in a vacuum. While it may contradict the apparent position as at 6 March 2008 for a unified $25 million professional indemnity limit including for sexual misconduct claims, it is dated approximately four months prior to the execution of the Policy. In this context, and in the light of the applicable principles, it is necessary to consider the other evidence leading up to the execution of the Policy.

D.3    The 26 March 2008 Emails from Mr Driscoll and Mr Dennis

41 The email from Mr Driscoll of 26 March 2008 records a confirmation of a position in relation to sexual misconduct of $15 million; however, it is unclear on its face whether it is referring to an indemnity limit of $15 million separate from, or as part of, a broader professional indemnity limit of $25 million. In any event, Mr Driscoll’s confirmation is qualified by the words “if Vic/Tas agree” (see ]).

42 The email sent by Mr Dennis of Marsh on the same day outlines the renewal instructions said to have been received from Mr Driscoll (see ]). It states that the instructions are to “[i]ncrease the limit of liability from $15m to $25m,” but explicitly adds a significant qualification: “The limit of liability in respect of Sexual Misconduct remains $15m for the time being pending the outcome of discussions between Allianz/SwissRe concerning reinsurance support for an increase to $25m”.

43 On its face, this communication does not record a concluded or settled position. The expression “for the time being” is inconsistent with the existence of a fixed and continuing common intention; rather, it conveys that the $15 million figure was provisional and subject to change depending upon the outcome of ongoing reinsurance discussions. The contingency identified is not peripheral, but goes directly to the level of cover available for sexual misconduct claims.

44 Further, the same email records that the instructions were “subject to the Vic/Tas Synod being in agreement” (see ]). That qualification indicates that, even at this stage, the position being communicated was not only contingent upon external reinsurance arrangements but also upon internal agreement between the various entities comprising the insured group. A position which is both externally contingent and internally conditional is difficult to reconcile with the existence of any concluded and shared intention of the kind required to ground a claim for rectification.

45 This conclusion is reinforced when that communication is read in light of the earlier 6 March 2008 email from Mr Atkins. In that email, Mr Atkins noted: “I understand Peter Taylor is to get back to us on the costing for raising the PI limit to $25 million including Sexual Abuse”. That communication suggests that, from the outset of the renewal process, the question of the appropriate limit for sexual misconduct was not fixed, but remained the subject of ongoing enquiry, negotiation and assessment of cost. The respondents’ desired position at that time was a unified $25 million limit including sexual abuse, and the issue was one of whether, and at what cost, that position could be achieved.

46 Taken together, these communications do not reveal a clear picture that, as at 6 March and 26 March 2008, the limit applicable to sexual misconduct claims was the subject of a settled or enduring consensus. Rather, they are consistent with a matter in active contemplation, subject to both internal agreement and the availability of reinsurance support. I am far from persuaded that the $15 million figure that emerges in these documents is the product of a concluded bargain (and not a provisional position adopted pending the resolution of those matters).

D.4    The email communications of 26 March 2008, 28 March 2008 and 31 March 2008

47 As set out above (see ]– ]), the other respondents identify several email communications between 26 March 2008 and 31 March 2008 which Allianz does not rely upon. Considered together and in the light of the correspondence discussed in Sections D.1, D.2 and D.3, those email communications (between Allianz, Hannover Re, Swiss Re and Marsh) suggest that the precise limit and scope of the professional indemnity cover had not been concluded as at 31 March 2008. The question of whether the Policy would limit cover to $15 million in respect of sexual misconduct claims appears as the subject of ongoing negotiation with Allianz while it obtained quotes and pursued coverage options with its reinsurers. Tellingly, the email from Mr Dennis (of Marsh) to Mr Driscoll (of Uniting Church NSW Synod) dated 31 March 2008 states that “[w]e are awaiting the outcome of discussions between Allianz and their reinsurers in regard to the possibility of increasing the Sexual Misconduct limit to $25m”.

D.5    The 31 March 2008 Placement Advice and the 1 April 2008 Email

48 Before turning to the detail of the competing submissions as to these documents, it is important to identify the way in which Allianz puts its case. In substance, Allianz contends that the placement advice of 31 March 2008, bearing its stamp, records the terms of the parties’ agreement, including a sexual misconduct sublimit of $15 million in addition to the general limit of $25 million, and it does not suggest that anything in the subsequent documentary record displaces that position.

49 On this view, the reference in the 1 April 2008 email from Mr Dennis to Mr Driscoll to the placement having been “finalised” confirms that the parties had reached a concluded bargain on those terms, with any subsequent communications concerning reinsurance merely reflecting a potential future variation, rather than any lack of agreement as at 31 March 2008. It is therefore said that the inconsistency within the executed Policy is explicable only as a failure accurately to record that concluded agreement.

50 The difficulty with that submission lies in the premise that the placement advice represents a concluded and continuing common intention of the parties which sustained up to the time of execution of the Policy. When the contemporaneous documents are read as a whole, and proper recognition is given to the requirement of convincing proof, that premise is not made good.

51 It is convenient to begin with the placement advice itself, which is the centrepiece of Allianz’s case. There is no doubt that, as at 31 March 2008, the placement advice recorded a position which included a sexual misconduct sublimit of $15 million (see ]).

52 The question, however, is whether that document evidences a concluded and continuing common intention, as distinct from a position reached during negotiations which remained subject to further consideration. In my view, at the very least, the latter characterisation is equally open. The placement advice must be read in its temporal context, and that context reveals that the position it records was neither fixed nor immutable.

53 The documentary evidence reveals that negotiations concerning the sexual misconduct limit remained ongoing well past the 31 March 2008 placement advice. It will be recalled that on 31 March 2008 at 4:00pm, Mr Dennis wrote to Mr Driscoll confirming coverage placement but expressly noted that “we are awaiting the outcome of discussions between Allianz and their reinsurers in regard to the possibility of increasing the Sexual Misconduct limit to $25m” (see ]). That statement is in tension with the notion that a sexual misconduct sublimit had been finally and conclusively agreed. Moreover, it is consistent with a material aspect of the cover remaining contingent upon the outcome of discussions external to the immediate dealings between the parties.

54 The very next day, Mr Dennis again emailed Mr Driscoll stating that “Allianz continue[s] to seek support in the reinsurance market for an increase in the limit of indemnity for Sexual Misconduct from $15m to $25m” (see ]). Interestingly, both Allianz and the respondents rely on the 1 April 2008 email to support their opposing arguments. Allianz argues that the email confirms its position in two ways.

55 F irst, the email explicitly states in its opening line: “[w]ith placement of the national insurance program[me] for 2008/09 now finalised, there remain a few matters which still need to be addressed”. Allianz understandably focusses upon the word “finalised” to argue the core terms of the 2008/09 national (i.e. including Victoria and Tasmania) insurance programme were already agreed upon.

56 Secondly, Allianz contends the phrasing that Allianz was “seek[ing] support … for an increase … from $15m to $25m” demonstrates that the sublimit for sexual misconduct was already agreed and set at $15 million, such that what was being pursued was a potential increase to an existing, agreed position, rather than any continuation of negotiations as to the applicable limit.

57 Despite the attractive way those submissions were put, they are not sufficiently compelling. The reliance placed on the word “finalised” isolates it from its immediate context. The sentence in which that word appears makes clear that “there remain a few matters which still need to be addressed”, and the subject matter of those “matters” included the potential increase of the sexual misconduct limit. Read fairly and as a whole, the email conveys that the placement of the programme had occurred, but on terms that were, at least in some respects, provisional and capable of further adjustment. It does not convincingly suggest a fixed and enduring agreement as to all material terms.

58 Nor does Mr Dennis’ reference to seeking reinsurance support for an “increase … from $15m to $25m” compel the conclusion that a $15 million sublimit had been conclusively agreed. When read together with the communication from Mr Dennis which was sent to Mr Driscoll the day before (see ]) and the earlier 26 March email from Mr Dennis referring to the $15 million figure applying “for the time being” (see ]), it is open to conclude that the better inference is that the $15 million figure represented a provisional or working position, pending the outcome of ongoing reinsurance discussions. Language of that kind is apt to describe an interim arrangement rather than a settled and continuing common intention. This conclusion is reinforced by the communications relied upon by the other respondents, which demonstrate that reinsurance discussions were continuing, particularly as between Mr Ruddick of Allianz and representatives of Hannover Re, Swiss Re and Marsh (see ]– ]).

59 The respondents argue Mr Dennis’ email of 1 April 2008 confirms that no common intention had been formed by 31 March 2008 that the policy would limit cover to $15 million in respect of sexual misconduct claims. From their perspective, the email is proof the $15 million limit was not fixed, but rather remained the subject of ongoing negotiation with Allianz while it pursued coverage options with its reinsurers. That characterisation has some force as an accurate reflection of the tenor of the contemporaneous communications.

60 Further, the placement advice cannot be considered in isolation from the Policy as executed. The placement advice, when compared to the Policy, exhibits discrepancies that point more to deliberate choices rather than mere administrative oversight. For example, the final Policy Schedule included Nungalinya College and Wesley College Sydney University as excluded insureds, which were not referenced in the placement advice. It also contained an extension for “Sporting and Social Clubs”, as well as a provision for “additional insureds”, each of which was not found in the placement advice.

61 These differences are not trivial. I accept that Allianz submitted that some of these differences may be explained by drafting history or carry-over from the previous policy, and that they were not shown to have affected premium. But that submission does not answer the more basic point. There is a want of evidence that they were the product of simple clerical error, and their existence tends to indicate that the Policy was not intended to be a mechanical transcription of the placement advice. Rather, they support an inference that the terms of the Policy as executed reflect a series of selections made at or prior to execution. That circumstance materially weakens the contention that the placement advice can be treated as a definitive record of the parties’ final agreement and instead reinforces the conclusion that it was a step in an ongoing process. At the very least, they reinforce the need for caution before concluding that a difference between the placement advice and the executed Policy was the product of common mistake.

D.6    The Policy

62 As previously noted, Allianz relied on the Policy itself. Allianz contends that the Policy is ambiguous on its face and suggests that it contains a mistake.

63 It will be recalled that the Policy Schedule has a general “Limit of Indemnity” of “$25,000,000.00 any one claim and in the aggregate”, but then under “Reinstatement” there is a table which provides in the row “Sexual Abuse” that there are “Nil” reinstatements for such claims and a “Limit” of “$15,000,000” (see ]). Allianz contends that the latter language would have no work to do if there were no sexual abuse limit of $15 million in addition to the general limit of $25 million.

64 While the clause may be structurally redundant or give rise to a degree of internal inconsistency, the mere existence of such a feature is not, together with all the other evidence, determinative. The difficulty for Allianz is that the probative value of that inconsistency is relatively equivocal. The presence of a $15 million figure in the reinstatement table may suggest that, at some stage in the drafting process, a distinction was contemplated between the general limit of indemnity and sexual misconduct claims. However, it does not necessarily or even more likely follow that the Policy, as executed, records a concluded and continuing common intention of the parties in the nature contended for by Allianz. That is particularly so when the Policy is considered in the context of the contemporaneous materials, which I have previously addressed.

65 It may be thought a court might, as a matter of construction, seek to resolve such an anomaly by reading the Policy as a whole to give practical effect to the $15 million figure as a form of carve-out or limitation. However, it is unnecessary to explain how this argument has its own difficulties because it is not, of course, the case advanced by Allianz. Allianz’s asserted equity proceeds on the footing that the written instrument fails to correspond with a purported common intention.

E Jones v Dunkel Inference

66 This issue can be dealt with briefly.

67 Allianz elected not to call any witnesses. The respondents submitted that no attempt was made to explain Mr Ruddick’s absence, who led negotiations on behalf of Allianz. The respondents submitted that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference should be drawn “to the effect that such testimonial evidence would not have advanced Allianz’s case”.

68 I interpolate to note that two types of inference are available under the rule in Jones v Dunkel. First, an inference may be drawn that the evidence of the absent witness would not have assisted the party’s case; and secondly, with greater confidence, any inference unfavourable to the party that failed to call the witness if that witness appears to be in a position to cast light on whether that inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 (at 384–385 [63] per Heydon, Crennan and Bell JJ).

69 During the hearing, I raised with Mr Conde why his instructing solicitor had not put on an affidavit (or obtained an affidavit from Mr Ruddick) to explain why Mr Ruddick could not assist the Court. Mr Conde submitted that because of the effluxion of time, it was unnecessary in the circumstances for such evidence to be adduced to establish a “reasonable excuse” for not calling Mr Ruddick, and, on balance, I think he is correct. In the end, however, it does not matter. I am not satisfied that the circumstances are such to draw a Jones v Dunkel inference. We are dealing with events that occurred 18 years ago. It is highly improbable that Mr Ruddick or any of the former underwriters would possess a reliable recollection of these specific negotiations and any oral testimony they could provide would inevitably carry much less weight than the contemporaneous documents.

F    CONCLUSION AND ORDERS

70 In short, the placement advice is best understood as recording a position reached during the negotiation process, rather than a concluded and continuing common intention. The reliance on the word “finalised” does not alter that conclusion when the email of 1 April 2008 is read as a whole, and the internal structure of the Policy is, at best, equivocal. Further, the differences between the placement advice and the Policy as executed tend to indicate choices made while finalising the instrument, rather than a failure to record an otherwise agreed set of terms.

71 These matters, taken together with the other contemporaneous communications, fall short of the clear and convincing proof required to displace the hypothesis arising from the execution of the Policy, namely that it records the true paction between the parties. Hence although Allianz’s case was presented with customary skill and clarity by Mr Conde, it must be dismissed with costs.

| I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. |
Associate:

Dated: 28 April 2026

SCHEDULE OF PARTIES

| | NSD 1050 of 2022 |
| Respondents | |
| Fourth Respondent: | THE UNITING CHURCH IN AUSTRALIA (AUSTRALIAN CAPITAL TERRITORY) PROPERTY TRUST ARBN 053 246 218 |
| Fifth Respondent: | THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (TAS) ABN 88 774 033 774 |
| Sixth Respondent: | THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NT) ABN 44 834 585 067 |
| Seventh Respondent: | UCA ASSEMBLY LTD ACN 000 007 447 (FORMERLY UNITING CHURCH COUNCIL OF MISSION TRUST ASSOCIATION |
| Eighth Respondent: | THE UNITED THEOLOGICAL COLLEGE |
| Ninth Respondent: | THE UNITING CHURCH IN AUSTRALIA - NATIONAL ASSEMBLY ABN 16 939 630 947 |