PETKOVSKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1993] NSWCA 211

PETKOVSKI v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, SHELLER and Cripps JJA 24 August 1993, 20 September 1993 [1993] NSWCA 211

The appellants claimed indemnity from the respondent in relation to theft of goods from their home. The thieves entered through a steel casement window which opened on external hinges.

In the proposal form the following appeared:

"Please note: It is essential to our acceptance of this insurance that the following question be fully answered

Are any of these security devices fitted to the building containing the 'Contents' to be insured? Answer each question by 'YES' or 'NO'.

Keyed window locks on all accessible windows?

The first appellant answered "YES".

The respondent purported to cancel the policy ab initio after the appellants' claim, saying that the answer was a material misrepresentation. It was the appellants' evidence, contested by the respondents, that the window had been secured by a padlock through an external hinge.

At trial the respondent argued that there was no "keyed window lock" present; that the appellants had misrepresented the position as to there being a lock; or that the appellants had not disclosed a material matter, being the nature of the lock.

The trial judge found that the padlock was present and fitted the description "keyed window lock", so rejected the first and second defence; but allowed the third defence because the padlock had been fitted externally - this was material to the risk and should have been disclosed.

The trial judge's acceptance that there was a padlock depended largely on a witness who had been ill. The appellants re opened their case to call him.

On appeal, the appellants argued that by insisting on a "yes" or "no" answer to the question concerning keyed window locks, the insurer waived disclosure of any other fact about the lock.