Walkom v American Home Assurance [2006] NSWDC 83

New South Wales District Court

CITATION: Walkom v American Home Assurance [2006] NSWDC 83

HEARING DATE(S): 24 Aug 06 25 Aug 06

JUDGMENT DATE: 20 October 2006

JUDGMENT OF: Williams DCJ at 1

DECISION: Verdict for the defendant with costs.

CATCHWORDS: Personal accident insurance - false and misleading advertising - belief policy cover was different to what it actually was - what loss was actually sustained

LEGISLATION CITED: Trade Practices Act 1974 s87(1A), 87(2)

Marsh v CGU Insurance Ltd (2004) NTCA 1 CASES CITED: Gates v CML Assurance Society Ltd (1986) 160 CLR 1 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494

PARTIES: Denise Walkom American Home Assurance Company

FILE NUMBER(S): 4736/04

COUNSEL: J Gooley for Pltff R Cheney for Def

SOLICITORS: Steve Masseleos & Co Lee and Lyons Lawyers

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IN THE DISTRICT COURT No. 4736/04 OF NEW SOUTH WALES Coram: Judge J S Williams AT SYDNEY Date: 20th October 2006

BETWEEN: Denise WALKOM. Plaintiff AND: American Home Assurance Company. Defendant JUDGMENT Amendment of the Statement of Claim

1. There is a preliminary issue in regard to this matter in that the plaintiff sought to amend the already amended Statement of Claim to seek an order under s87(1A) of the Trade Practices Act 1974 varying the contract of insurance such that it responds to a permanent disability rendering the plaintiff unable to perform her usual work at the relevant times.

2. The amendment is opposed for practical reasons, in that the defendant has not had the opportunity of addressing the question that the "Plaintiff suffers a permanent disability rendering her unable to perform her usual work at the relevant time."