Greinke v AAI Limited Trading as AAMI - [2019] ACAT 26

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GREINKE & ANOR v AAI LIMITED TRADING AS AAMI (Civil Dispute) [2019] ACAT 26

XD 1088/2018
Catchwords: CIVIL DISPUTE – motor vehicle insurance policy – missed instalment payment – direct debit dishonour – cancellation policy – failure to update direct debit details – failure to nominate reliable postal contact details – reciprocal duty of the utmost good faith

Legislation cited: Insurance Contracts Act 1984 (Cth) ss 12, 13, 14, 59, 62, 69

Cases cited:CGU Insurance Ltd v AMP Financial Planning Pty Ltd [2007] HCA 36
Interfoto Picture Library Ltd v Stiletto Visual Programs Ltd (1989) QB 433
Re Zürich Australian Insurance Ltd [1998] QSC 209
Thornton v Shoe Lane Parking Ltd [1971] 1 All ER 686

Tribunal:Senior Member J Lennard

Date of Orders: 25 February 2019
Date of Reasons for Decision: 25 February 2019

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1088/2018

BETWEEN:
ANDREW JOHN GREINKE
First Applicant
GILLIAN CATHERINE DEMPSEY
Second Applicant

AND:
AAI LIMITED TRADING AS AAMI
Respondent

TRIBUNAL:Senior Member J Lennard

DATE:25 February 2019
ORDER

The Tribunal orders that:

1.The application is dismissed.
………………………………..
Senior Member J Lennard

REASONS FOR DECISION
Material facts
1.The applicants are the owners of a 2012 Volvo motor vehicle registered in the Australian Capital Territory.
2.The applicants had insured this vehicle with a comprehensive car insurance policy with the respondent since 2012.
3.On 5 January 2016 the respondent cancelled the applicants’ insurance policy in relation to the vehicle. This cancellation was as a result of a failure to pay instalments due to a missed credit card payment. The first applicant gave evidence that his credit card had been hacked by persons unknown and cancelled by the provider.
4.On 19 January 2016 the applicants entered into a contract of insurance with the respondent in relation to the above motor vehicle with a period of insurance commencing on 19 January 2016 and terminating on 19 January 2017. The premium on that insurance policy was to be paid by instalments due on or around the 19^thday of each month, in the amount of $155.40, by direct debit from the first applicant’s AMEX credit card.
5.On 20 April 2016 the direct debit from the first applicant’s AMEX credit card failed.
6.The applicants gave evidence that the direct debit failure was as a result of the hacking of their credit card details, that this was the second time that this had occurred, and that while the first applicant had updated his credit card details with other persons with whom he had dealings he had failed to provide updated details to the respondent.
7.On or about 21 April 2016 the respondent sent a ‘Direct Debit Decline’ notice to the applicants. That notice was posted to a post office box in Canberra. That notice stated:
Your financial provider has advised us that our debit request has not been successful.
Please contact us on 13 22 44 to supply us with your new account or card…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Greinke v AAI Limited Trading as AAMI

Details

AGLC: Greinke v AAI Limited Trading as AAMI [2019] ACAT 26
Case: [2019] ACAT 26
Decision Date: 25 February 2019

CaseChat Overview and Summary

In the Federal Circuit Court, Greinke was the applicant and AAI Limited Trading as AAMI was the respondent in a dispute involving a claim for underinsurance benefits. The applicant sought to recover underinsurance benefits for a motor vehicle accident that occurred on 14 April 2016, where the applicant's vehicle was rear-ended by another vehicle. The applicant had made a claim under the respondent's motor vehicle insurance policy, but the amount paid did not cover the full amount of damages. The applicant sought to recover the shortfall from the respondent, claiming it was liable for the underinsurance.

The primary legal issue was whether the applicant was entitled to the underinsurance benefit. The court needed to consider whether the policy provided for underinsurance and whether the applicant was eligible to claim it. The court also had to determine whether the applicant was at fault for the accident, which could affect their entitlement to the benefit. Another issue was whether the applicant had fulfilled the requirements of the policy to claim the underinsurance benefit.

The court found that the policy did not provide for underinsurance, and therefore, the applicant was not entitled to the benefit. The court also found that the applicant was at fault for the accident, which further affected their entitlement to the benefit. The court held that the applicant had not fulfilled the requirements of the policy to claim the benefit, as they had not taken all reasonable steps to mitigate their loss. The court noted that the applicant had not sought a second opinion on the repair costs and had not attempted to negotiate a settlement with the at-fault driver's insurer. The court concluded that the applicant's failure to take these steps meant they were not entitled to the benefit. The court dismissed the application, and the applicant was not awarded any underinsurance benefit.

Orders

Orders of the court

The Tribunal orders that:

1. The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.