NSW Caselaw
New South Wales Court of Appeal
CITATION: Davis v Westpac Life Insurance Services Ltd [2007] NSWCA 175
HEARING DATE(S): 16 February 2007
JUDGMENT DATE: 24 July 2007
JUDGMENT OF: Hodgson JA at 1; Santow JA at 3; McColl JA at 4
DECISION: Appeal dismissed with costs.
CATCHWORDS: INSURANCE – contract of life insurance – non-disclosure of medical condition – whether insurer would not have been prepared to enter into a contract of life insurance on any terms with the insured had he complied with his duty of disclosure - AVOIDANCE OF CONTRACT OF LIFE INSURANCE – whether insurer entitled to avoid contract of life insurance – Insurance Contracts Act 1984 (Cth) – s 29(3) –whether insurer must prove s 29(3) notional decision as at the date of the contract it seeks to avoid or whether it can avoid contract if it proves it would not have made a decision at that date but would have deferred consideration of the proposal and later would not have been prepared to enter into a contract of life insurance on any terms with the insured
LEGISLATION CITED: Insurance Contracts Act 1984 (Cth) Life Insurance Act 1945 (Cth)
Advance (NSW) Insurance Agencies Pty Ltd v Matthews [1989] HCA 22; (1989) 166 CLR 606 Australian Securities Commission v Malborough [1993] HCA 15; (1993) 177 CLR 485 Barclay Holdings (Australia) Pty Ltd v British Insurance Co Ltd (1987) 8 NSWLR 514 Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd [1987] HCA 30; (1987) 163 CLR 236 Marene Knitting Mills Pty Ltd v Greater Pacific General Insurance Ltd [1976] 2 Lloyd's Rep 631 CASES CITED: Mayne Nickless Ltd v Peglar [1974] 1 NSWLR 228 McCabe v Royal & Sun Alliance Life Assurance Australia Ltd [2003] WASCA 162; (2003) 12 ANZ Ins Cas 90-119 Mutual Life Insurance Co of New York v Ontario Metal Products Co Ltd [1925] AC 344 Schaffer v Royal & Sun Alliance Life Assurance Australia Ltd [2003] QCA 182; (2003) 12 Anz Ins Cas 90-116 Summerton v SGIC Life Ltd [1999] SASC 121; (1999) 10 ANZ Ins Cas 90-102 Western Australian Insurance Co Ltd v Dayton [1924] HCA 58; (1924) 35 CLR 355
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