Insurance Law



Insurance Law


Authors: Katherine Hayes, Partner and Greg Stirling, Senior Associate

The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry is due to hand down its final report by 1 February 2019. The Commission has dissected the way some of our biggest institutions do business, causing shockwaves in the process.

In his interim report tabled to parliament on 28 September 2018, Commissioner Kenneth Hayne provided some detailed reflections, including on the financial advice sector, and has given some guidance about the areas in which his recommendations may focus.

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Authors: Mark Brookes, Partner, Greg Stirling, Senior Associate & Madelyne Inch, Solicitor

Breach of warranty of authority is an action available against an agent who misrepresents his or her authority to a third party and as a result of that misrepresentation, the third party enters into a contract and suffers loss. The rationale for the action lies in the fact that a third party who is induced to act and has given consideration in reliance on the agent’s implied promise (that he or she has authority), has no cause of action against the principal if they did in fact not give authority to the agent.

Breach of warranty of authority claims can arise against solicitors in mortgage fraud cases.

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Authors: Mark Brookes, Partner, Greg Stirling, Senior Associate & Madelyne Inch, Solicitor

A recent decision of the Supreme Court of New South Wales has highlighted the importance of aggregation clauses in insurance policies in determining an insured’s and an insurer’s liability for multiple related claims by separate parties. In circumstances where class actions are seemingly becoming more prevalent, the case of Bank of Queensland Ltd v AIG Australia Ltd [2018] NSWSC 1689 presents a timely reminder to insurers and insureds to carefully consider their respective liability when confronted with multiple claims of a similar nature.

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Authors: Michael Bath, Partner & Wendy Bure, Senior Associate

It is often argued that, where an insurance policy requires an insured to comply with a statute or Australian Standard, an insured need do no more than take ‘reasonable care’ to comply. Our previous newsletter discussed WFI Insurance Ltd v Manitowoq Platinum Pty Ltd [2018] WADC 89 where the implication of such a term was accepted. However earlier this year the Court of Appeal in WFI Insurance Ltd v Manitowoq Platinum Pty Ltd [2018] WASCA 89 overturned that decision finding that, in the context of the policy in question, absent express words, it was not reasonable or appropriate to imply a reasonableness standard.

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Author: Peter Dovolil, Special Counsel

In a recent decision of the NSW Court of Appeal, the court considered the duty owed by a cleaning contractor, specifically in circumstances where findings were made that a spillage was present as a cleaner passed the incident area.

The claim was for personal injury allegedly suffered by Mr Al Kammessey as a result of a slip and fall whilst a patron at the Westfield Liverpool Shopping Centre. The defendant (appellant on appeal) was the insurer for Atlantic Cleaning and Security Pty Ltd, who was substituted into the proceedings as Atlantic had entered liquidation. The incident was captured by CCTV footage and there is no dispute the plaintiff (respondent on appeal) fell as alleged. Whilst the decision contains a significant discussion regarding the dispute which arose in the key facts to be determined, the reason by which the key facts were found is not relevant to the significance of the decision.

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