Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, EDELMAN, STEWARD AND GLEESON JJ

ALLIANZ AUSTRALIA INSURANCE LIMITED APPELLANT

AND

DELOR VUE APARTMENTS CTS 39788 RESPONDENT

Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788

[2022] HCA 38

Date of Hearing: 10 & 11 August 2022

Date of Judgment: 14 December 2022

S42/2022

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 9 July 2021 and, in their place, order that:

(a) the appeal be allowed with costs; and

(b) the declarations and orders of the Federal Court of Australia made on 24 July 2020 be set aside and, in their place, it be ordered that proceeding NSD 2094 of 2018 be dismissed with costs.

On appeal from the Federal Court of Australia

Representation

D A McLure SC and T O Prince for the appellant (instructed by Holman Webb Lawyers Brisbane)

I M Jackman SC with M R Elliott SC and P Mann for the respondent (instructed by LMI Legal)

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

CATCHWORDS

Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788

Insurance – Contract of insurance – Where insured body corporate knew that apartment buildings had serious non-structural defects which it did not disclose to insurer – Where cyclone caused substantial damage to apartment buildings and exposed defects – Where insurer advised insured that it would provide indemnity despite non‑disclosure – Where extent of indemnity ambiguous – Where dispute arose as to sequence of repair works and distribution of costs – Where insurer proposed settlement on particular terms and advised that, if insured did not accept, it would rely on s 28(3) of Insurance Contracts Act 1984 (Cth) and reduce liability based on non‑disclosure – Whether insurer bound by representation of indemnity due to waiver, election or estoppel – Whether insurer failed to act with utmost good faith.