Dawes Underwriting Australia Pty Ltd v Roth

Dawes Underwriting Australia Pty Ltd (the insurer) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a motor vehicle insurance policy. The dispute arose from alleged misrepresentations made by the insured, Mr Roth, regarding his driving record and previous insurance claims when applying for the policy. The insurer sought to avoid liability under the policy based on these alleged misrepresentations.

The Court of Appeal was required to determine whether the misrepresentations made by Mr Roth were fraudulent or merely careless, and crucially, whether the insurer would have entered into the insurance contract on the same terms and conditions had the true facts been known. This determination was central to the application of section 28 of the *Insurance Contracts Act 1984* (Cth), which governs the effect of misrepresentations in insurance contracts. The court also considered when the interim and final contracts of insurance were formed.

The Court of Appeal upheld the primary judge's finding that Mr Roth's misrepresentations, while careless, were not fraudulent. Applying section 28(2) of the *Insurance Contracts Act 1984* (Cth), the court found that the insurer had not established that it would not have entered into the contract on the same terms and conditions had the true facts been disclosed. The judges reasoned that the insurer's underwriting practices and the nature of the misrepresentations did not demonstrate that the policy would have been refused or altered in a material way. Consequently, the insurer was not entitled to avoid liability under the policy.

The appeal was dismissed, and Dawes Underwriting Australia Pty Ltd was ordered to pay the costs of the appeal.