Case S42/2022

Allianz Australia Insurance Limited v. Delor Vue Apartments CTS 39788

Case No.


Case Information

Lower Court Judgment

09/07/2021 Federal Court of Australia (McKerracher, Derrington and Colvin JJ)

[2021] FCAFC 121


Insurance – Insurance contracts – Indemnity – Election – Estoppel – Waiver – Duty of utmost good faith – Where s 28(3) of Insurance Contracts Act 1984 (Cth) enables insurer to reduce liability in respect of claim where, relevantly, insured breached duty of disclosure – Where insured notified claim under insurance policy following cyclone damage – Where insurer agreed to indemnify despite non-disclosure of prior defects – Where insurer took steps consistent with providing indemnity – Where insurer emailed insured stating, despite non-disclosure, claim would be honoured – Where insurer subsequently sought to disclaim liability on basis of non-disclosure – Where majority of Full Court of Federal Court of Australia dismissed appeal, holding insurer had elected not to raise defence under s 28(3) – Whether insurer elected not to raise defence under s 28(3) – Whether, if doctrine of election did not apply, insurer waived entitlement to raise defence under s 28(3) – Whether insurer estopped from raising defence under s 28(3) – Whether insured suffered detriment – Whether insurer breached duty of utmost good faith and, if so, whether insured suffered loss justifying relief.


17/03/2022 Hearing (SLA, Canberra by remote connection)

30/03/2022 Notice of appeal

06/05/2022 Written submissions (Appellant)

06/05/2022 Chronology (Appellant)

02/06/2022 Written submissions (Respondent)

23/06/2022 Reply

10/08/2022 Hearing (Full Court, Canberra)

09/08/2022 Outline of oral argument (Respondent)

10/08/2022 Outline of oral argument (Appellant)

11/08/2022 Hearing (Full Court, Canberra)

14/12/2022 Judgment (Judgment Summary)