Antico v Heath Fielding Australia Pty Ltd

The High Court of Australia considered a dispute between Antico (the appellant) and Heath Fielding Australia Pty Ltd (the respondent) concerning an indemnity for legal expenses provided under a claims made insurance policy. The central issue was whether the appellant's failure to obtain the insurer's consent before incurring or paying legal expenses, as required by a condition in the policy, invalidated the claim for indemnity, particularly in light of section 54 of the *Insurance Contracts Act 1984* (Cth).

The court was required to determine the legal effect of the policy condition requiring the insurer's consent to the incurring or payment of legal expenses. Specifically, it had to consider whether this failure to obtain consent constituted an "act or omission" to which section 54 of the *Insurance Contracts Act 1984* (Cth) applied, and if so, what the consequences of that application would be for the insurer's liability.

The High Court reasoned that the failure to obtain consent was an act or omission by the insured. However, the court held that section 54 of the *Insurance Contracts Act 1984* (Cth) was intended to prevent insurers from relying on such breaches to avoid liability where the breach did not prejudice the insurer. The court found that the insurer had not demonstrated any prejudice arising from the appellant's failure to obtain consent. Consequently, the appeal was allowed, and the respondent was ordered to pay the costs of the appellant in the High Court and in the lower courts, with liberty for the parties to agree on further consequential orders.