Catriona Smith v OnePath Life Limited [2020] NSWSC 1185

Supreme Court New South Wales

Medium Neutral Citation: Catriona Smith v OnePath Life Limited [2020] NSWSC 1185 Hearing dates: 3, 4 August 2020 Decision date: 02 September 2020 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Summons dismissed. Catchwords: INSURANCE LAW – Insurance Contracts Act 1984 (Cth) – Life insurance policy where the insured gave false answers to questions about his use of drugs – Whether he failed to comply with his duty of disclosure or made misrepresentations – Whether such failure was or the misrepresentations were fraudulent – Whether the insurer would have entered into the policy in any event – Whether the insurer was entitled to avoid the policy – HELD – The insured fraudulently failed to comply with his duty of disclosure and fraudulently made misrepresentations – HELD – The insurer would not have entered into the policy and legitimately avoided it. Legislation Cited: Insurance Contracts Act 1984 (Cth), ss 21(1), 26(2), 29(1)-(2) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 CGU Insurance Ltd v Porthouse (2008) 235 CLR 103 Lamb v Johnson (1914) 15 SR (NSW) 65 Permanent Trustee Australia Limited v FAI General Insurance Company Limited (In Liq) (2003) 214 CLR 514 QBE Underwriting Ltd as managing agent for Lloyds Syndicate 386 v Southern Colliery Maintenance Pty Ltd [2018] NSWCA 55 Stealth Enterprises Pty Ltd t/as The Gentlemen's Club v Calliden Insurance Limited [2017] NSWCA 71 Tyndall Life Insurance Co Ltd v Chisholm (2000) 11 ANZ Ins Cas 90-104 Category: Principal judgment Parties: Catriona Smith – Plaintiff OnePath Life Limited – Defendant Representation: Counsel: J E Sexton SC with H J A Neal – Plaintiff J Gleeson QC with S J Walsh – Defendant