Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HEYDON, CRENNAN, KIEFEL AND BELL JJ

MILLER & ASSOCIATES INSURANCE

BROKING PTY LTD APPLICANT

AND

BMW AUSTRALIA FINANCE LIMITED RESPONDENT

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited

[2010] HCA 31

29 September 2010

M69/2009

ORDER

1. Special leave to appeal granted.

2. Amended draft notice of appeal dated 19 January 2010 treated as filed in the appeal, and appeal treated as instituted and heard instanter and allowed with costs.

3. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 11 June 2009 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of Victoria

Representation

J J Gleeson SC with G Crafti for the applicant (instructed by Minter Ellison)

A C Archibald QC with M A Robins for the respondent (instructed by Francis V Gallichio Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited

Trade practices – Misleading or deceptive conduct – Non-disclosure – Representation by supply of certificate of insurance and/or non-disclosure of nature of insurance – Whether provision of certificate by insurance broker to experienced premium lender misrepresented cancellability of underlying policy – Whether failure of broker to inform lender in terms that policy was non-cancellable constituted misleading or deceptive conduct.

Appeal – Powers of appellate court – Review of trial judge's findings of fact – Where finding allegedly based on mistaken understanding of agreed fact and inferences arising from it – Whether finding "glaringly improbable" or contrary to "compelling inferences".