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[2019] ZASCA 11
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Centriq Insurance Company Limited v Oosthuizen and Another (237/2018) [2019] ZASCA 11; 2019 (3) SA 387 (SCA) (14 March 2019)
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THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 237/2018
In
the matter between:
CENTRIQ
INSURANCE COMPANY
LIMITED APPELLANT
and
MARISA
VOGEL
OOSTHUIZEN FIRST
RESPONDENT
JOSÉ
FRANCISCO
CASTRO SECOND
RESPONDENT
Neutral
citation:
Centriq
Insurance Company Limited v Oosthuizen & another
(237/2018)
[2019] ZASCA 11
(14 March 2019)
Coram:
Cachalia,
Mbha and Mathopo JJA and Dlodlo and Rogers AJJA
Heard:
22
February 2019
Delivered:
14
March 2019
Summary:
Interpretation
of insurance contract – professional indemnity insurance for
financial advisors – whether exclusion clause
purporting to
exclude cover for negligent financial advice accords with purpose of
policy – policy to be interpreted so as
to give it commercial
efficacy.
ORDER
On
appeal from:
Free
State Division of the High Court, Bloemfontein (Daffue J sitting as
court of first instance):
The
appeal is dismissed with costs including the costs of two counsel.
JUDGMENT
Cachalia
JA (Mbha and Mathopo JJA and Dlodlo and Rogers AJJA concurring)
[1]
This appeal concerns the interpretation of a professional indemnity
insurance policy underwritten by Centriq Insurance Company
Ltd
(Centriq). The policy indemnified a financial advisor from liability
for ‘breach of duty in connection with [his] business
by reason
of any negligent act, error or omission’. The advisor had
advised his client to invest in a dubious property development
scheme
in circumstances described more fully below. The investment failed
and she sought to recover her loss from him, who in turn
claimed the
indemnity from Centriq. It denied liability, relying on an exclusion
clause that set out certain situations in which
the indemnity did not
apply. The defence failed in the Free State Division of the High
Court.
[1]
Centriq now appeals
that order with leave of this court. The issues in this appeal are
important for insurers who underwrite financial
advice on the one
hand, and for financial advisors who seek to indemnify themselves
against the adverse consequences of their advice
on the other.
Genesis
of the dispute
[2]
The first respondent, Mrs Marisa Vogel Oosthuizen, became widowed
following her husband’s death in a shooting accident,
leaving
her with their two and half year old son. The deceased was a farmer
and his life policy secured for her an amount of R3.4
million. Of
this amount she set aside R300 000 as a reserve, purchased calves to
the value of R1.1 million and decided to invest
the balance of R2
million. To this end she sought the advice of Mr José
Francisco Castro, who had previously advised her
husband and whom she
trusted. He was registered as a financial services provider and a
broker in terms of the
Financial Advisory and Intermediary Services
Act 37 of 2002
. He advised her to invest the R2 million in Sharemax
Investments (Pty) Ltd (Sharemax). The investment was in a property
development
scheme known as ‘The Villa Retails Park Holdings
2’. The Villa was a yet to be completed shopping complex, a
fact that
he did not draw to Mrs Oosthuizen’s attention.
[3]
The development failed following a Reserve Bank investigation, which
found that Sharemax was contravening the Banks Act 94 of
1990 by
taking deposits illegally. With no prospect of recovery from
Sharemax, Mrs Oosthuizen sued Mr Castro for the loss of her
capital
sum of R2 million plus
mora
interest on this amount, less an amount of R1 400 she had
received from Sharemax a few days after making the investment. Her
claim was that Mr Castro had failed to act honestly and fairly in her
interests in recommending the investment; that he had not
given her
objective financial advice appropriate to her needs; and that he had
not exercised the degree of skill, care and diligence
expected of an
authorised financial services provider.
[4]
After the pleadings had closed, Mr Castro joined Centriq as a third
party claiming that he was entitled to be indemnified under
the
policy concluded with Centriq. The policy is styled ‘Professional
Indemnity Insurance for Members of the Financial Intermediaries
Association’ and, as is apparent from its name, is offered to
all members of the body. Mr Castro was one such member. Centriq
denied any obligation to indemnify Mr Castro on the ground that Mrs
Oosthuizen’s loss fell within the ambit of the specific
exclusion contained in clause 3(ii) of the policy. The clause
excluded Centriq from having to indemnify the insured member:
‘
[I]n
respect of any third party claim
arising
from or contributed to by depreciation (or failure to appreciate) in
value of any investments
,
including securities, commodities, currencies, options and futures
transactions,
or as a result
of any actual or alleged representation
,
guarantee or warranty provided by or on behalf of the Insured
as
to the performance of any such investments
.
It is agreed however that this Exclusion shall not apply to any loss
due solely to negligence on the part of the Insured . . .
in
failing to effect a specific investment transaction in accordance
with the specific prior instructions
of a client of the Insured.’ (Emphasis added.)
[5]
Following Mrs Oosthuizen’s evidence regarding the circumstances
in which she came to make the investment and that of Mr
Magnus
Heystek, who gave expert testimony on whether Mrs Castro’s
advice was what a reasonable investment advisor ought to
have given
her, she closed her case. Neither Mr Castro nor Centriq disputed
their evidence. I shall narrate their evidence when
I set out the
background in more detail later. Mr Castro also takes no issue with
the finding of the court a quo that he is liable
to Mrs Oosthuizen
for her loss. Neither does Centriq. But Centriq maintains that its
liability as the third party is excluded.
[6]
Centriq contends that the exclusion is triggered by two distinct
provisions in the exclusion clause. The first is that the claim
by
the third-party claimant against the insured – ie, Mrs
Oosthuizen’s claim against Mr Castro – is one that
arises
from or is contributed to by depreciation or failure of the
investment to appreciate in value. The second is that the investment
was undertaken by the insured on the third-party claimant’s
behalf pursuant to a representation, guarantee or warranty by
the
insured as to the performance of the investment.
[7]
The court a quo found neither trigger present. Regarding the first
the learned Judge rejected Centriq’s contention that
the loss
in value of the investment was ‘contributed to by depreciation’
pursuant to Mr Castro’s advice. He concluded,
on the basis of
Mr Heystek’s evidence, that the investment was ‘hopeless’
from the onset, and that the loss arising
therefrom was not
‘contributed to by depreciation’ as envisaged in the
clause. In regard to whether Mr Castro’s
advice constituted a
representation, guarantee or warranty as to the performance of the
investment the court a quo held that this
was not Mrs Oosthuizen’s
case. She sued Mr Castro because he had failed to give her adequate
investment advice, suitable
to her needs for a safe investment, and
not because the investment had not performed in accordance with the
advice she had obtained.
Mrs Oosthuizen maintained that the learned
Judge’s reasoning in respect of both issues was correct. It
will be helpful to
place these contentions in their proper
perspective by setting out the background and Mrs Oosthuizen’s
evidence in a
bit more detail.
Background
[8]
The judgment of the court a quo sets out the circumstances under
which Mrs Oosthuizen decided to make the investment and
the
reasons for holding Mr Castro liable for breach of their
financial services contract succinctly. This is common ground,
which
I shall recount briefly.
[9]
Mrs Oosthuizen was left vulnerable and insecure in the immediate
aftermath of her husband’s sudden death. She was also
placed in
a financial predicament before she was able to gain access to the
proceeds of her husband’s insurance policy, having
to borrow
money from her brother to take care of herself and her son. She was a
qualified teacher but had no knowledge or experience
regarding
financial products, and therefore turned to Mr Castro, who was aware
of her situation. They met on 27 July 2010, four
and a half months
after her husband’s passing.
[10]
She was required to fill in two documents which Mr Castro had brought
to the meeting. One was a ‘Needs Analysis’
and the other
an ‘Advice and Intermediary Agreement’. What emerged was
that she needed maximum monthly income with
‘low risk’.
This was what Mr Castro filled in on her behalf. In fact she made it
clear to him that she could not afford
any risk: as she put it, she
could not afford to lose two cents. Simply put she required a safe
high income investment. She also
accepted, as appears from the
‘Advice and Intermediary Agreement’, that even though Mr
Castro could not guarantee her
capital investment or returns in the
short term he would direct his best endeavours to making a safe
investment for her.
[11]
In providing this assurance he also drew her attention to several
newspaper articles that were highly critical of the property
syndication schemes of Sharemax. One publication referred to it as a
‘house of cards collapsing’. Another warned financial
advisors, who were registered with the Financial Services Board, that
the registrar and the Reserve Bank had serious reservations
about the
product Sharemax was offering and that they should be drawing their
clients’ attention to the problems even at
the risk of reducing
the attractive commission of six per cent that was on offer.
[12]
Mr Castro referred her to these articles, not to warn her of the
pitfalls of the investment, but to assure her that there was
no
substance to any of the criticism. Because, as he explained to her
somewhat thoughtlessly and misleadingly: ‘property
cannot
disappear’. He did not tell her that she was not investing
directly in fixed property. He created the false impression
that she
was investing in a developed property and not in an uncompleted
development.
[13]
The tenuous link between Mrs Oosthuizen’s investment and
immovable property appears from the prospectus relating to the
offer
for which Mrs Oosthuizen, on Mr Castro’s advice, subscribed.
The prospectus related to the issue of shares by a company
called The
Villa Retail Park Holdings 2 Limited (VR2). The sum VR2 intended to
raise by the public offer was R75 million. Ms Oosthuizen
would thus
be acquiring shares in VR2. The proceeds of her investment and of
similar investments by other gullible members of the
public were to
be used by VR2 to acquire a 60 per cent shareholding in a company
called Villa Retail Park Investments (Pty) Ltd
(VRPI) and to make a
loan to VRPI. VRPI would, in turn, use the money it acquired from VR2
towards paying a modest portion of the
purchase price of the
immovable property, the total purchase price being R2.9 billion, most
which still had to be raised by further
public offers. The purchase
price was owed by VRPI to a company called Capicol 1 (Pty) Ltd
(Capicol). According to the prospectus,
it was anticipated that VRPI
would take transfer of the property from Capicol in September 2011.
Accordingly, and only if the additional
funds needed to pay the full
purchase price were raised, Mrs Oosthuizen would in due course own a
small number of shares in VR2
which would hold 60 percent in VRPI.
VRPI would in turn own the property. But the whole scheme folded well
before these events
(save for the disappearance of Mrs Oosthuizen’s
money) came to pass.
[14]
The scheme required investors to transfer their money to Sharemax’s
chosen company. The company or Sharemax would then
pay their
investors interest on this investment without the underlying
investment – the property development – having
earned
anything – and where it was unlikely to do so for years,
pending the purchase of the land and the construction of
a shopping
centre. Only upon the completion of the construction centre would
rental income be realised. Yet the prospectus previously
mentioned
held out to investors a projected rate of return equal to a 10 per
cent after tax dividend from the date of full subscription
to the
occupation date in September 2011. The ‘investment’ in
fact had all the hallmarks of a Ponzi scheme in which
money placed by
later investors pays artificially high interest or dividends to the
original investors, thereby attracting even
larger investment. When
there are no longer new investors, which inevitably happens, the
scheme collapses. Mrs Oosthuizen was one
of the later investors. On
any objective analysis the investment was not viable; certainly not
having regard to her needs.
[15]
As the learned Judge trenchantly observed:
‘
It
is amazing that [Mr Castro] could think for one moment that interest
could lawfully accrue from the investment from the first
month. I
wonder where he thought the magical origin of the income stream would
derive from . . . [A] simple investigation or even
an inspection of
the half-built shopping complex would have been an eye-opener. He
would have realised that enormous costs would
have to be incurred to
complete the project [and that the] . . . half-built shopping complex
could not earn any income for some
time . . . but the investment
provided for income to be paid to investors from the start.’
[16]
It was, to be kind to Mr Castro, an investment that he himself did
not properly understand. He dismissed the adverse criticism
circulating in the media without satisfying himself as to whether
there was any substance in it. He quite clearly failed to explain
the
risks of the investment to allow Mrs Oosthuizen to make an informed
decision. The finding by the court a quo that Mr Castro
was in breach
of his fiduciary duty to his client because he had not taken
reasonable steps to satisfy himself of the safety of
the investment
and to give her adequate financial advice to meet her needs is
therefore unassailable. As I have mentioned Centriq
does not contend
otherwise.
Interpreting
insurance contracts
[17]
Centriq criticises the judgment of the court a quo for having failed
to properly interpret the exclusion clause. It is therefore
necessary
to revisit the approach to interpreting insurance contracts. As the
learned Judge observed, insurance contracts are contracts
like any
other and must be construed by having regard to their language,
context and purpose in what is a unitary exercise. A commercially
sensible meaning is to be adopted instead of one that is insensible
or at odds with the purpose of the contract.
[2]
The analysis is objective and is aimed at establishing what the
parties must be taken to have intended, having regard to the words
they used in the light of the document as a whole and of the factual
matrix within which they concluded the contract.
[3]
[18]
But because insurance contracts have a risk-transferring purpose
containing particular provisions, regard must be had to how
the
courts approach their interpretation specifically. Thus, any
provision that places a limitation upon an obligation to indemnify
is
usually restrictively interpreted, for it is the insurer’s duty
to spell out clearly the specific risks it wishes to exclude.
In the
event of real ambiguity the doctrine of interpretation,
contra
proferentem
,
applies and the policy is also generally construed against the
insurer who frames the policy and inserts the exclusion.
[4]
But, like other aides to the interpretation of contracts of this
nature, the doctrine must not be applied mechanically, for exclusion
clauses, like other contractual clauses, must be construed in
accordance with their language, context and purpose with a view to
achieving a commercially sensible result.
[19]
In this regard the learned Judge’s reliance on the following
statement from an English case,
Impact
Funding Solutions Ltd v AIG Europe Insurance Ltd
,
[5]
is apposite:
‘
An
exclusion clause must be read in the context of the contract of
insurance as a whole. It must be construed in a manner which
is
consistent with and not repugnant to the purpose of the insurance
contract. There may be circumstances in which in order to
achieve
that end, the court may construe the exclusions in an insurance
contract narrowly.’
[20]
To this should be added the following statement, also from an English
case,
Crowden
& another v QBE Insurance (Europe) Ltd
,
[6]
which bears particular relevance to this appeal:
‘
[T]here
may be occasions, where there is a genuine ambiguity in the meaning
of the provision, and the effect of one of those constructions
is to
exclude all or most of the insurance cover which was intended to be
provided. In that event, the Court would be entitled
to opt for the
narrower construction This result may be achieved not only by the
(application) of the
contra
proferentem
approach but
also the approach that . . . in the case of ambiguity, the Court may
opt for the more commercially sensible construction
. . . .’
[21]
The consequence of adopting a business-like or commercially sensible
construction of an insurance policy is that the literal
meaning of
words read in their context may have to yield to a fair and sensible
application where they are likely ‘to produce
an unrealistic
and generally unanticipated result’, which is at odds with the
purpose of the policy.
[7]
But a
word of caution is warranted: courts are not entitled, simply because
the policy appears to drive a hard bargain, to lean
to a construction
more favourable to an insured than the language of the contract,
properly construed, permits. For, if that is
what the insured
contracted for that is what he is entitled to, and no more. It is not
for the courts to construe exclusions in
favour of the insured simply
because it considers them to be unfair or unreasonable.
[22]
I now turn to the interpretation of the exclusion clause at issue in
this appeal.
[8]
The two
exclusions with which we are concerned are first, whether the claim
was
arising
from or contributed to by depreciation (or failure to appreciate) of
the investment
and secondly,
as
a result of a representation as to the performance of any such
investments.
But
first, it is important to bear in mind the commercial object or
purpose of the policy.
[23]
Although the policy covers a wide range of insured events, including:
fidelity insurance, loss of documents, negligent conduct
by
compliance officers, third party computer crimes, defamation and
injuria, its main purpose, as the learned Judge a quo observed,
is to
indemnify financial advisors against their liability for negligent
financial advice. This is apparent from the bold heading
of the
policy, which reads: Professional Indemnity Insurance for ‘Members
of the Financial Intermediaries Association’,
and its insuring
provision explaining its purpose as to provide professional indemnity
in respect of any legal liability ‘for
breach of duty in
connection with the business by reason of any negligent act, error or
omission committed in the conduct of the
business’. Its
members, as emerged from Mr Heystek’s evidence, are
financial advisors, who provide financial advice
to their clients.
Insurance companies offering indemnity insurance to financial
advisors take comfort from the fact that these
people have to comply
with stringent requirements before they are registered. Mr Castro’s
business not only entailed
providing financial advice relating to
investments, but also included advice on other financial products
including life insurance,
short-term insurance and medical aid, which
the indemnity covered. With that in mind we must consider the effect
of the exclusion.
Contributed
to by depreciation in value
[24]
Centriq takes issue with the court a quo’s findings that the
investment was ‘hopeless from the onset’ and
that the
purpose of this leg of the exclusion is aimed at preventing an
insured from claiming indemnification where the value of
an
investment has not grown or has reduced in value contrary to
expectations. It contends that it was not established as a fact
that
the investment was ‘worthless’ at inception and that the
fact that Mrs Oosthuizen was paid an amount of R1 400
a few days
after her investment indicates that it had some value at inception.
As regards the quantum of the loss it is contended
that even if there
was a total loss of the investment the capital sum must first
depreciate in value before this stage is reached.
On a plain reading,
therefore, the exclusion clause was triggered.
[25]
It is unnecessary, in my view, to engage in a semantic debate over
whether the investment was worthless or hopeless from the
beginning.
Mrs Oosthuizen made clear in her further particulars that the
investment was not a viable proposition. Mr Heystek confirmed
this.
It is also apparent that the only payment of R1 400 Mrs Oosthuizen
received from Sharemax on 3 August 2010 – a mere
five days
after she made the investment – was a sweetener to dupe her and
other unsuspecting investors into believing in
the efficacy of the
investment, reminiscent of a Ponzi scheme. No proper financial
rationale was given for how this amount was
generated or that it
represented some intrinsic or residual value. If we test this by
attempting to place a market value on the
investment at its inception
– determined by reasonably informed buyers and sellers –
there is no question that it would
have yielded a negative result.
The onus rested on Centriq to bring the claim within the exception by
proving that Mrs Oosthuizen’s
investment initially had a
material value which then declined – without decline there is
no depreciation. Centriq did not
discharge this onus. Mr Heystek’s
evidence strongly suggests that no reasonably informed buyer would
have touched this scheme
with the proverbial bargepole. But, as will
appear from what follows, this is not the only obstacle in Centriq’s
way.
[26]
As regards the distinction the court a quo implicitly drew between a
partial loss (depreciation) and total loss, Centriq contends
that
this is ultimately one without a difference as the extent of the loss
(depreciation) cannot logically render the exclusion
inapplicable. I
accept that the extent of the loss cannot be what determines whether
this part of the exclusion is triggered, but
this misses the point.
[27]
Depreciation usually refers to the diminishing of value over time
[9]
and not to an investment that is not capable of generating an
appreciable value from the beginning. So why does the clause refer
to
depreciation rather than simply to any loss in value? The court a quo
correctly considered the language used as referring to
the reduction
in value resulting from market or investment forces rather than the
type of loss that occurred here. This was also
the construction the
New Zealand Court of Appeal placed on a similarly worded clause in
Trustees
Executors Limited v QBE Insurance (International) Limited.
[10]
It makes perfect commercial sense that insurers would seek to protect
themselves from claims arising from market fluctuations of
investments instead of any loss from whatever cause.
[11]
[28]
But even if we accept that depreciation may refer to simple loss of
value and not merely to gradual or partial loss, this part
of the
clause is ambiguous or unclear because it could also refer to gradual
or partial loss from market or investment forces on
the one hand or
to total loss from whatever cause on the other. That being so the
clause should be construed
contra proferentem
so as to achieve
a commercially sensible result, having regard to the purpose of the
contract, which was to indemnify the financial
adviser against legal
liability. An interpretation that renders the purpose of the
indemnity nugatory hardly meets this yardstick
and yields an
unrealistic and unanticipated result.
Representation
as to performance of the investment
[29]
Centriq’s reliance on the second leg of the exclusion would
appear, at first blush, to rest on a stronger foundation.
The
argument is this: the court a quo’s factual finding was that Mr
Castro had induced Mrs Oosthuizen to make this unsafe
investment. But
for his representations as to its performance – ie that it was
safe and thus would not decline in value –
she would not have
made the investment. The exclusion, so it is contended, was therefore
triggered. The court a quo dismissed this
contention. It held that
Mrs Oosthuizen did not rely on representations (advice) regarding the
performance of the investment, but
as to the safety of it.
[30]
I accept that it may be implicit in the advice regarding the safety
of an investment that it will perform in a manner that
yields this
result. However, for the same reason I have held that ‘depreciation’,
in the first leg of the exclusion,
is likely to refer to gradual or
partial loss from market or investment forces instead of total loss
from whatever cause. I think
that ‘performance’ in the
context of this clause should be construed similarly.
[12]
It is quite clear that Mrs Oosthuizen was less concerned with how
well the investment would perform but rather with whether it
was
safe. Most investors accept that there may be loss if an investment
does not perform according to expectation. She was not
such an
investor. Her primary concern was that the investment was safe, that
she would not lose anything, and that it would yield
a consistent
return to meet her needs. This was not the bargain she got. Mr Castro
did not mislead her regarding the anticipated
performance of the
investment but regarding its fundamental character.
[31]
Centriq ultimately accepts that its interpretation means that the
purpose of the exclusion is to exclude any investment advice.
In
response to the criticism of the court a quo that this interpretation
effectively emasculates Mr Castro’s policy cover,
Centriq
contended that the policy was not limited to cover based on his
business as an investment broker, but that he had in fact
been the
late Mr Oosthuizen’s short-term and long-term insurance and
medical broker as well. The policy therefore still indemnifies
Mr
Castro for negligent advice for other aspects of his business.
Centriq was therefore entitled, so the contention goes, to decline
to
underwrite investment risk of any type, even when the client had done
so on the basis of negligent advice or misrepresentation
as to the
true qualities of the investment.
[32]
But there are at least two difficulties with this submission: First,
the policy was not framed with Mr Castro in mind. Centriq
offered
this policy – and presumably still does – to all ‘members
of the Financial Intermediaries Association’,
including
Mr Castro. Their main business is to offer financial advice. It
is difficult to accept that it was the mutual intention
of these
members and Centriq to exclude all coverage for their investment
business.
[13]
Secondly, if
Centriq sought to achieve this type of exclusion, it should have done
so with much clearer language. Instead, it chose
obscure language. It
bears the onus to bring itself within the exclusion, and cannot now
complain if it is unable to do so.
[33]
I therefore come to the conclusion that the court a quo correctly
upheld Mr Castro’s claim to be indemnified in
accordance
with the terms of the policy. It follows that Centriq’s appeal
must fail. The following order is made:
The
appeal is dismissed with costs including the costs of two counsel.
______________
A
Cachalia
Judge
of Appeal
Appearances
For
the Appellant: C E Watt-Pringle SC (with him C C Bester)
Instructed
by: Andrew Miller & Associates, Sandton
McIntyre
Van der Post, Bloemfontein
For
the Second Respondent: J F Mullins SC (with him P J J Zietsman)
Instructed
by: Blair Attorneys, Bloemfontein
[1]
Daffue J.
[2]
Natal Joint
Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) para 18.
[3]
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013]
ZASCA 176
;
[2014] 1 All SA 517
(SCA);
2014 (2) SA 494
(SCA) para 18.
[4]
Fedgen
Insurance Limited v Leyds
1995
(3) SA 33
(A) at 38A-E.
[5]
Impact Funding
Solutions Ltd v AIG Europe Insurance Ltd
[2016]
UKSC 57
; [2017] Lloyd’s Rep IR 60 (SC) para 7.
[6]
Crowden &
another v QBE Insurance (Europe) Ltd
[2017]
EWHC 2597
(comm); [2018] Lloyd’s Rep IR 83 (Q) para 65.
[7]
See generally
Professor J Bird et al
MacGillivray
on Insurance Law
14
ed (2018) paras 11-007–11-008.
[8]
Above para 4.
[9]
Concise Oxford English Dictionary 12
ed (2011).
[10]
Trustees
Executors Limited v QBE Insurance (international) Limited
[2010]
NZCA 608
para 51. The clause read:
‘
Securities
Exclusion
Notwithstanding anything to the
contrary stated in the Policy or endorsed thereon, it is hereby
declared and agreed that this
Policy does not provide indemnity
against any Claim or Claims arising from or contributed to by
depreciation (or failure to appreciate)
in value of any investments,
including but not limited to, property, shares, securities,
commodities, currencies, options and
futures or derivative
transactions, or as a result of any actual or alleged
misrepresentation, advice, guarantee or warranty
provided by or on
behalf of the insured as to the performance or characteristics of
any such investments.’
[11]
Ibid.
[12]
Ibid.
[13]
Compare:
Trustees Executors Limited v QBE Insurance (International) Limited
fn
10 para 51.