Genworth Financial Mortgage Insurance v Clisdell [2009] FCA 1014

In this case Genworth was suing to recover money paid out on mortgage insurances from the valuer. The trial was allocated six days but on the first morning the valuer’s legal representatives sought to amend their defence to include 140 new paragraphs, being a detailed set of allegations against various parties, in effect, alleging fraud and misleading and deceptive conduct in relation to the obtaining of loans. The valuer alleged those parties were concurrent wrongdoers, in the sense that Genworth would not have issued lenders mortgage insurance but for the false and fraudulent misrepresentations made as to the identity of the borrower, the borrower’s employment, and the borrower’s income. By alleging concurrent liability the amended defence was relying on the new proportionate liability law. 

The court reluctantly allowed the amendments noting that the trial would need to be aborted and it would be ‘months’ before it would again be ready for trial. The court ordered that the costs thrown away be paid by the valuer. Had the valuer’s legal representatives attended Matthew Bransgrove’s College of Law seminar last year on Proportionate Liability in Claims against Valuers their client would not be in the predicament they are now in. Copies of the paper can be obtained in pdf format from Bransgroves Lawyers or in bound hardcopy through the College of Law.

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