Insurance – (Claims by Body Corporate) – Policy


INSURANCE – strata insurance policy for damage to property – property damaged by fire – occupation of a unit within the strata by an “outlaw motorcycle gang” (‘OMCG’) for use as its clubhouse – proposal form for insurance referred to nature of occupation of the unit as an ‘office’ – whether fact of occupation by OCMG disclosed by Insured, by its insurance broker, to underwriting agent for Insurer prior to the policy being entered into – materiality of non-disclosure of occupation by OMCG – whether Insurer entitled to reduce liability to nil under Insurance Contracts Act 1984(Cth), s 21(3)

TORTS – negligence – whether insurance broker negligently failed to disclose fact of OMCG’s occupation to Insurer’s underwriting agent – whether negligent failure to advise Insured of the risk of an unenforceable policy of insurance if OMCG’s occupation not disclosed – whether broker’s negligent failure to advise client of alternative options – causation – scope of liability where only part of the loss claimed premised upon Insurer’s breach of contract of indemnity – proportionate liability defence – whether author of earlier proposal form and earlier broker were ‘concurrent wrongdoers’

TORTS – negligence – on contingent cross-claim whether insurance agent in breach of duty of care – whether negligence is said to be direct or vicarious

DAMAGES – assessment of value of indemnity if insurer liable for breach of policy

LIMITATION OF ACTIONS – Insurer’s contingent cross-claim against underwriting agent – premise that OMCG’s occupation was disclosed contrary to underwriter’s representation to Insurer – concession that if OMCG’s occupation was disclosed on the insured’s behalf, there was breach by underwriter of strict contractual obligation – whether cause of action against underwriter in contract statute barred – whether cause of action fraudulently concealed – Limitation Act 1969(NSW), s 55 – whether ordinary operation of s 14 may exclude period in which wrongful conduct prevents action being commenced

ESTOPPEL – conventional estoppel

EVIDENCE – common knowledge – whether occupation by OMCG of a tenancy was material fact requiring disclosure to Insurer

PRACTICE AND PROCEDURE – Brokers and Insured argue that duty of disclosure waived or modified by disclosure of information – no pleading of the contention – Insurer and Agent argue Owners Corporation had no standing to claim for financial loss asserted by lot owners – no pleading of absence of standing – whether arguments should be considered by the Court

The Owners – Strata Plan No 55682 v W. R. Berkley Insurance (Europe), PLC & Ors [2020] NSWDC 758 (17 December 2020)