Anderson v AON Risk Services Australia Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Anderson v AON Risk Services Australia Ltd & Anor [2004] QSC 049

PARTIES:

MALCOLM ANDERSON
(plaintiff)
v
AON RISK SERVICES AUSTRALIA LIMITED
ACN 000 434 720
(first defendant)
HISCOX DEDICATED CORPORATE MEMBER LTD
(second defendant)

FILE NO/S:

S 2097 of 2000

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

9, 10, 11, 12, 13 and 16 February 2004

JUDGE:

McMurdo J

ORDER:

Judgment for the second defendant against the plaintiff

CATCHWORDS:

INSURANCE – GENERAL – MISREPRESENTATION AND NON-DISCLOSURE – STATUTORY REMEDIES –where agreed value policy pending independent valuation – where insured values grossly exceed market values – where alleged misrepresentation and nondisclosure by insured – where misrepresentation and nondisclosure not fraudulent –  whether insurer is entitled to reduce its liability to the amount that would place the insurer in a position in which the insurer would have been if the misrepresentation had not been made

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PLEADING – GENERALLY – where plaintiff says that insured items were stolen – where defendant did not deny nor admit this statement – where defendant provided particulars suggesting fraudulent claiming by the plaintiff – whether the defendant can advance a fraud case absent a denial that the goods were stolen

Insurance Contracts Act 1984 (Cth), s 28(3)
Uniform Civil Procedure Rules, r 150, r 166, r 166(4)

 Advance (NSW) Insurance Agencies Pty Ltd v Matthews (1989) 166 CLR 606, followed
CIC Insurance Limited v Midaz Pty Ltd & Anor (1998) 10 ANZ Insurance Cases 61-394, cited
Orb Holdings Pty Ltd v Lombard Insurance Co (Australia) Ltd [1994] QCA 155; [1995] Qd R 51, cited
Palamisto General Enterprises S A v Ocean Marine Insurance Co Ltd [1972] 2 QB 625 (CA), cited
Simon v NRMA Insurance Ltd (Unreported, Supreme Court of New South Wales Court of Appeal, 22 October 1991), cited

COUNSEL:

E J Lennon QC for the plaintiff
S S Couper QC for the first defendant on 9 February 2004
G E Hiley QC, with S S Couper QC and S R Lumb for the second defendant on 9-10 February 2004

S S Couper QC, with S R Lumb, for the second defendant on 11-16 February 2004

SOLICITORS:

Lyonsmith Commercial Lawyers for the plaintiff
Sparke Helmore Solicitors for the first defendant

Phillips Fox Lawyers for the second defendant

1. J:McMURDO   The plaintiff, Mr Anderson, is a 52 year man who for many years has conducted an apparently successful business of the provision of security services.  He has spent a considerable amount of his leisure time in hunting, both in this country and overseas.  His safaris have taken him to Africa, North America and elsewhere.  Many of the animals he shot were sent to a taxidermist to provide him with what hunters call their trophies.  At the beginning of 1999, his trophies decorated rooms of his house at Bellbird Park near Ipswich, where he then lived…