AMP Fire and General Insurance Co Ltd v Leighton Contractors Pty Ltd

AMP Fire and General Insurance Co Ltd (AMP) appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales concerning a dispute with Leighton Contractors Pty Ltd (Leighton). The underlying dispute related to AMP's liability under a contract of insurance for damage sustained by Leighton during the construction of the Sydney Harbour Tunnel.

The primary legal issue before the Court of Appeal was whether AMP was entitled to avoid the insurance policy on the grounds of material non-disclosure or misrepresentation by Leighton. Specifically, the court had to determine whether Leighton had failed to disclose material facts relating to the risks associated with the tunnel construction project, and if so, whether this failure entitled AMP to repudiate the policy.

The Court of Appeal considered the principles of disclosure and misrepresentation in insurance law, particularly in the context of a commercial insurance contract. The court affirmed that the duty of disclosure owed by an insured to an insurer is a continuing one, and that a failure to disclose a material fact can entitle the insurer to avoid the policy. However, the court also examined the definition of "materiality" and the circumstances in which an insurer might be deemed to have waived its right to avoid the policy. The court found that AMP had not established that Leighton had failed to disclose any fact that was material to the risk undertaken by AMP, nor had it established any actionable misrepresentation.

Consequently, the Court of Appeal dismissed AMP's appeal, upholding the Supreme Court's decision that AMP was liable under the insurance policy.