Avant Insurance Limited v Darshn [2022] FCAFC 48

Federal Court of Australia

Avant Insurance Limited v Darshn [2022] FCAFC 48 Appeal from: Darshn v Avant Insurance Limited [2021] FCA 232; Darshn v Avant Insurance Limited [2021] FCA 706; Darshn v Avant Insurance Limited (No 3) [2021] FCA 1035

File number(s): NSD 909 of 2021

Judgment of: JAGOT, DERRINGTON AND COLVIN JJ

Date of judgment: 29 March 2022

Catchwords: INSURANCE — whether lawyers retained by insurer to act for insured had authority to give notice of facts that might give rise to claim on behalf of insured — whether lawyers retained by insurer for insured did give notice of facts that might give rise to claim against insured to insurer — whether insurer's reliance on insured not having given notice of facts that might give rise to claim against insured contravened insurer's duty of utmost good faith — whether primary judge erred with respect to scope of declaratory order made — appeal dismissed — part of cross-appeal upheld

Legislation: Insurance Contracts Act 1984 (Cth) ss 13, 40(3) Civil Procedure Act 2005 (NSW), Pt 10

Cases cited: Antico v CE Heath Casualty & General Insurance Ltd (1996) 38 NSWLR 681 CGU Insurance Ltd v AMP Financial Planning Pty Ltd [2007] HCA 36; (2007) 235 CLR 1 Darshn v Avant Insurance Limited [2021] FCA 706 Esined No 9 Pty Limited v Moylan Retirement Solutions Pty Ltd (No 2) [2020] NSWSC 359; (2020) 353 FLR 1 House v R (1936) 55 CLR 499 IVI P/L v Baycrown P/L [2005] QCA 205 Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151; (2004) ANZ Ins Cas ¶61–612 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 Rickhuss v The Cosmetic Institute Pty Ltd [2018] NSWSC 1848