Allianz Australia Insurance Ltd v BlueScope Steel Ltd [2014] NSWCA 276

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Allianz Australia Insurance Ltd v BlueScope Steel Ltd [2014] NSWCA 276 Hearing dates: 16 April 2014 Decision date: 21 August 2014 Before: Basten JA at [1]; Meagher JA at [69]; Ward JA at [94] Decision: 1. Appeal allowed in part. 2. Set aside the orders of the Dust Diseases Tribunal made on 30 May 2013. 3. Remit the cross-claim to the Tribunal for the purpose of determining: (a) whether BlueScope was dispensed from compliance with condition 3 of the Policy; (b) whether, if not, BlueScope should be excused under s 18(1) of the Insurance Act 1902 (NSW) from any breach of condition 3 of the Policy; and (c) if necessary, BlueScope's claim to damages for breach of Allianz' obligation of utmost good faith in the respects alleged in par 22(b) of BlueScope's cross-claim. 4. No order as to the costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: INSURANCE - s18(1) of the Insurance Act 1902 (NSW) - whether primary judge erred in finding no prejudice for the purposes of s18(1) of the Insurance Act 1902 (NSW) - whether loss of chance to cross-examine plaintiff amounted to prejudice from late notification of the claim - whether refusal to take over conduct of proceedings and/or to indemnify dispensed insured from obligation not to make settlement without prior consultation - whether loss of opportunity to seek contribution from co-defendant to moneys paid to plaintiff to settle claim amounted to prejudice for the purposes of s18(1) of the Insurance Act 1902 (NSW) arising from failure to consult before settlement