Allison Pty Ltd (ACN 056 940 437) t/a Pilbara Marine Port Services v Lumley General Insurance Ltd

The plaintiff, Allison Pty Ltd, sought leave to amend its statement of claim to include a claim for breach of the duty of good faith by the defendant, Lumley General Insurance Ltd. The original writ of summons, issued on 28 November 1995, sought damages for breach of a marine insurance contract and a declaration that the contract remained in full force and effect. The plaintiff wished to add a claim for damages for the defendant's alleged breach of an implied term of the insurance contract and a duty of good faith. The court considered whether the proposed amendments fell within the indorsement on the writ and whether the causes of action arose after the writ was issued. The court held that the proposed amendments did not fall within the indorsement as it was confined to claims for breach of contract, not a breach of a duty which arises under the general law. Furthermore, the court held that the causes of action for breach of the implied term and the alleged breach of the duty of good faith arose after the writ was issued, which precluded such claims being brought in this action. The court also rejected the plaintiff's contention that a breach of the duty of good faith gives a remedy in damages, holding that such a breach does not give a remedy in damages and the proposed amendment disclosed no reasonable cause of action. Accordingly, the court refused leave to amend the statement of claim.