Allianz Australia Insurance Limited v Yu (No 2)

The respondents, Allianz Australia Insurance Limited, appealed against a decision of the Supreme Court of Queensland, arguing that the trial judge had erred in rejecting parts of their affidavit in a proceeding against the appellant, Mr Yu. The trial judge had found that Mr Yu was liable for damages for fraudulent misrepresentations and breaches of duty, and that Allianz was entitled to damages in the sum of $3,604,777. The appeal was against the quantum of damages only. The appeal was allowed and remitted to the Supreme Court for a re-assessment of damages. Allianz's affidavit contained a reference to documents, including an email, which had been lodged with the court in a previous proceeding against Mr Yu. The email had been written by Mr Yu's former solicitor, Mr Lee, and was not signed by Mr Lee. Allianz did not call Mr Lee as a witness and did not tender the email as evidence. Mr Yu objected to the use of the email in the affidavit on the basis that it had not been disclosed in the previous proceeding and that Allianz had not sought leave to use it.
The court examined the nature of the implied undertaking, known as the Harman undertaking, which arises when documents are lodged with the court in a proceeding. The court found that the implied undertaking did not extend to documents being used in separate proceedings, and that Allianz was not prevented from using the email in the affidavit in the present proceeding. However, the court also considered the principles in Hearne v Street, which emphasise the importance of fairness in the administration of justice, and found that Allianz had acted unfairly by using the email in the affidavit without proper disclosure and leave. The court held that the trial judge was entitled to reject parts of the affidavit on the basis that Allianz had acted unfairly, and that this was sufficient to uphold the appeal against the quantum of damages.

The court concluded that the appeal should be allowed and the matter remitted to the Supreme Court for a re-assessment of damages. The court did not address the issue of the liability of Mr Yu for fraudulent misrepresentations and breaches of duty, as this was not challenged on appeal. The court noted that the trial judge had found that Mr Yu was liable for these actions, and that this finding was not challenged on appeal. The court also noted that the trial judge had found that Allianz was entitled to damages, but that the quantum of damages was excessive. The court held that the appeal against the quantum of damages should be allowed, and that the matter should be remitted to the Supreme Court for a re-assessment of damages. The court did not make any orders as to costs.