Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets

Icon Co (NSW) Pty Ltd sought indemnity from Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets under two insurance policies in relation to structural damage to Opal Tower. The dispute centred around whether the declaration of construction contracts by Icon during the period of insurance engaged "run off" cover during the defects liability period, and whether Liberty was precluded from denying indemnity by operation of section 58 of the Insurance Contracts Act 1984 (Cth). Additionally, Icon sought rectification of the first policy and argued that Opal Tower and/or its constituent parts constituted a "Product" as defined in the second policy.

The court had to decide whether Icon's declaration of the project under the first policy engaged "run off" cover during the defects liability period, whether Liberty was precluded from denying indemnity by section 58 of the Insurance Contracts Act 1984 (Cth), whether the first policy should be rectified, and whether Opal Tower and/or its constituent parts constituted a "Product" as defined in the second policy. The court also had to consider whether an endorsement to the policy of insurance was a project-specific policy of insurance, whether such endorsements were "usual to renew," and whether section 58 of the Insurance Contracts Act 1984 (Cth) was engaged. Furthermore, the court examined the construction of the insurance policies, the permissible resort to extrinsic materials in interpreting the insurance policy, and the principles of rectification in equity.

The court found that on its proper construction, the Opal Declaration did not meet the requirements of Condition 15. The court held that Liberty was not precluded from denying indemnity on the basis of an omission to use some precise form of wording by operation of section 54 of the ICA. The court also found that the Opal Tower and/or its constituent parts did not constitute a "Product" as defined in the second policy. The court held that the Opal Endorsement was not a project-specific policy of insurance, and that such endorsements were not "usual to renew." The court found that section 58 of the Insurance Contracts Act 1984 (Cth) was not engaged.

The court ordered that the parties provide to the Associate to Justice Lee agreed short minutes of order reflecting these reasons (or, failing agreement, competing short minutes of order and submissions limited to two pages) within seven days.