CIC INSURANCE LTD v BANKSTOWN FOOTBALL CLUB LTD [1994] NSWCA 359

CIC INSURANCE LTD v BANKSTOWN FOOTBALL CLUB LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and POWELL JJA 29-31 March 1994, 14 December 1994

[1994] NSWCA 359

INSURANCE — cancellation — validity of- solicitor accepts in letter — held: (by Maj) — Cancellation accepted — Binds insured — within ostensible authority — cancellation effective — no statutory policy under s58 Insurance Contracts Act 1984. LEGAL PRACTITIONERS — ostensible authority — cancellation of insurance policy — within authority in disputed claim — estoppel — representations unconscientious to deny — held: (by Maj) Estopped from denying. DAMAGES- insurance contract — non-payment of claim — general damages recoverable.

INSURANCE — cancellation — validity of — letter by insurer to insured's solicitor following fire caused by arson — insurer purports to cancel policy — insured's solicitor requests payment of cheque for balance of premium which is duly repaid — whether solicitor's letter binds insured — whether constitutes abandonment of policy ab initio — whether insured estopped from asserting continuation of policy in face of letter — held: (allowing appeal and reversing Cole J on this point): (per Kirby P and Powell JA, Priestley JA dissenting on this point)

(1) It was not necessary for the insurer to prove the insured's actual authority to its solicitor to write as he did. It was enough that the solicitor acted within the ostensible authority of his retainer.

Geissler v Accro Motors Pty Ltd (1955) 73 WN (NSW) 31 (FC) applied; Freeman and Lockyer v Bathurst Park Properties (Mangal) Ltd [1964] 2 QB 480 (CA) and Crabtree-Vickers Pty Ltd v Australian Advertising and Addressing Co Pty Ltd (1975) 133 CLR 72 applied;

(2) The solicitor's letter in its terms was within the ostensible authority of his retainer and bound his client, the insured;