Fogarty v CGU Insurance Ltd

Fogarty (the appellant) appealed to the Court of Appeal of the Supreme Court of the Australian Capital Territory against a decision of a single judge of that Court. The dispute concerned an insurance policy issued by CGU Insurance Ltd (the respondent) to the appellant. The appellant alleged that the respondent had breached the insurance contract by failing to adequately repair damage to the appellant's property, despite the respondent having elected to repair the damage.

The central legal issue before the Court of Appeal was whether the primary judge had erred in finding that the respondent had not breached the insurance contract. This required the Court to consider the scope of the insurer's obligation to repair under the policy and whether the proposed method of repair was acceptable to the insured, or if the insured's refusal to accept the proposed method constituted a breach on their part.

The Court of Appeal found no error in the primary judge's determination. The reasoning focused on the contractual right of the insurer to elect to repair the damage. The primary judge had concluded that the appellant's refusal to accept the proposed method of repair, which was deemed reasonable by the primary judge, meant that the appellant had prevented the insurer from fulfilling its contractual obligation. Consequently, the appellant had not demonstrated that the primary judge erred in finding no breach by the insurer.

The appeal was dismissed, with the appellant ordered to pay the respondent's costs unless submissions to the contrary were received within seven days.