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

FEDERAL COURT OF AUSTRALIA

Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2020] FCA 1493 File number: VID 781 of 2019

Judge: LEE J

Date of judgment: 19 October 2020

Catchwords: INSURANCE – claims for indemnity by construction company under two insurance policies in relation to structural damage to Opal Tower – where applicant declared construction contracts commenced during period of insurance – where incident occurred after practical completion of project but during defects liability period – whether applicant's declaration of project under first policy engaged "run off" cover during defects liability period – whether first insurer precluded from denying indemnity by operation of s 58 of Insurance Contracts Act 1984 (Cth) – rectification – whether first policy should be rectified – whether Opal Tower and/or its constituent parts constitute a "Product" as defined in second policy INSURANCE – whether endorsement to policy of insurance is a project-specific policy of insurance – whether such endorsements are "usual to renew" – whether s 58 of Insurance Contracts Act 1984 (Cth) engaged CONTRACTS – construction of policies of insurance – consideration of relevant principles – consideration of permissible resort to extrinsic materials in interpretation of insurance policy – consideration of "true rule" stated in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 – where majority of evidence adduced irrelevant to disposition of contract claim – consideration of distinction between enquiries in claim in contract and claim of rectification EQUITY – rectification – consideration of relevant principles – whether parties held common intention that policy was to provide cover during defects liability period – where each party engaged an agent – consideration of principles of attribution of intention of agents to principals in context of rectification – whether permissible to have resort to ostensible authority in context of rectification EVIDENCE - where first respondent insurer did not call evidence from representatives of their agent - whether Jones v Dunkel inference should be drawn