ALLIANZ AUSTRALIA INSURANCE LTD V DELOR VUE APARTMENTS CTS 39788

[2022] HCA 38, High Court of Australia, Chief Justice Kiefel, Justice Gageler, Justice Edelman, Justice Steward and Justice Gleeson, 14 December 2022

Insurance (property) – Statement by insurers that they would not rely upon non-disclosure – Decision changed – Waiver – Estoppel – Utmost good faith – Insurance Contracts Act 1984 (Cth), sections 13 and 28

DV owned a complex of 11 apartment buildings in North Queensland. On 28 March 2017 the buildings were severely damaged by Tropical Cyclone Debbie. The buildings were insured five days before the cyclone. It was known to DV that there were serious defects with the soffits and eaves, but they were not disclosed. On 9 May 2017 the insurers stated that despite the non-disclosure, the insurers were “pleased to confirm that we will honour the claim and provide indemnity to [DV], in line with all other relevant policy terms, conditions and exclusions". The indemnity excluded repairs to pre-existing defects. On 28 May 2018 the insurers confirmed that the policy did not cover the cost of rectifying defects of which DV should have been aware but that despite non-disclosure by DV the insurers would pay for internal damage unrelated to the pre-existing defects. The letter concluded with the statement that if DV did not agree to proceed with the uninsured repairs within 21 days then the “offer in relation to indemnity will lapse” and nothing would be paid.