Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2021] FCAFC 121

Federal Court of Australia

Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2021] FCAFC 121 Appeal from: Delor Vue Apartments CTS 39788 v Allianz Australia Insurance Ltd (No 2) [2020] FCA 588; and Delor Vue Apartments CTS 39788 v Allianz Australia Insurance Ltd (No 3) [2020] FCA 1281

File number: NSD 924 of 2020

Judgment of: MCKERRACHER, DERRINGTON AND COLVIN JJ

Date of judgment: 9 July 2021

Catchwords: INSURANCE - appeal from decision determining separate questions - where primary judge found insurer not entitled to rely upon s 28(3) of Insurance Contracts Act 1984 (Cth) to reduce liability to nil - where insured notified claim under insurance policy following cyclone damage - where insurer agreed to indemnify despite non-disclosure of prior defects - where insurer took steps consistent with providing indemnity - where insurer subsequently sought to disclaim liability on basis of non-disclosure - whether primary judge erred in finding that insurer estopped from resiling from representation made to insured to indemnify - whether detrimental reliance - whether primary judge erred in finding insurer waived entitlement to assert right under s 28(3) - whether primary judge erred in finding insurer breached duty of utmost good faith - whether decision of primary judge should be upheld on further basis that doctrine of election applies - consideration of circumstances in which doctrine of election applies - whether relief granted by primary judge proper and appropriate - appeal dismissed PRACTICE AND PROCEDURE - whether decision of primary judge rested on estoppel case not advanced before primary judge - consideration of nature and purpose of concise statement - consideration of distinction between concise statements and pleadings