GIO General Ltd v Wallace

Reported Decision: (2001) 11 ANZ Ins Cas 61-506
[2001] ACL Rep 235 NSW 13

New South Wales

Court of Appeal

CITATION:	GIO General Limited v Wallace [2001] NSWCA 299
FILE NUMBER(S):	CA 40090/00
HEARING DATE(S):	31 August 2001
JUDGMENT DATE:	23 October 2001
PARTIES :	GIO General Limited (Appellant) Lawrence Aston Wallace (Respondent)
JUDGMENT OF:	Priestley JA at 1; Heydon JA at 2; Hodgson JA at 71

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2847/98
LOWER COURT JUDICIAL OFFICER :	P R Bell DCJ

COUNSEL:	Mr J G Duncan (Appellant) Mr G T Johnson (Respondent)
SOLICITORS:	Abbott Tout (Appellant) Brian Muir & Company (Respondent)
CATCHWORDS:	Contracts - Insurance Law - Insurance contracts - Insured's duty of disclosure - Scope of duty - Whether duty breached - Insurer's duty to inform insured about duty of disclosure - Whether duty breached - Where residential premises insured - Where business use of premises increased - Where insured received threats and minor property damage - Insurance Contracts Act 1984 (Cth), ss 11, 21, 22 and 28- ND
LEGISLATION CITED:	Insurance Contracts Act 1984 (Cth)
CASES CITED:	Commercial Union Assurance Co of Australia Ltd v Beard (1999) 47 NSWLR 735 Delphin v Lumley General Insurance Ltd (1989) 5 ANZ Insurance Cases 60-941 Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (1998) 153 ALR 529 Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679 Suncorp General Insurance Ltd v Cheihk (1999) 10 ANZ Insurance Cases 61-442
DECISION:	See paragraph 70

CA 40090/00

DC 2847/98

PRIESTLEY JA

HEYDON JA

HODGSON JA

GIO GENERAL LIMITED v WALLACE

Contracts - Insurance Law - Insurance contracts - Insured's duty of disclosure - Scope of duty - Whether duty breached - Insurer's duty to inform insured about duty of disclosure - Whether duty breached - Where residential premises insured - Where business use of premises increased - Where insured received threats and minor property damage - Insurance Contracts Act 1984 (Cth), ss 11, 21, 22 and 28

The respondent ("the plaintiff") owned premises with another person. From December 1987 to December 1988 the premises were insured with the appellant insurer ("the defendant") under a home building insurance policy, which was renewed annually thereafter. On the original insurance proposal it was written by the insured that the use of the property was as a "private home" and that part of the home would be used for business purposes for "storage of equipment only".

In 1991 the premises were visited and inspected by an employee of the defendant in relation to an insurance claim for wind damage. From about 1992 there was a significant increase in the use of the premises for the purposes of the plaintiff's wood chipping/tree surgeon business. The plaintiff moved the business office, some machinery and inflammable liquids onto the premises. He also began using the premises for wood storage, the parking of trucks and the sale of wood. In late 1992 or early…