Ms Amlin Corporate Member Limited v LU Simon Builders Pty Ltd

Ms Amlin Corporate Member Limited sought a determination from the Court as to whether the respondents, LU Simon Builders Pty Ltd, had provided sufficient notice of claims against the insured, in accordance with section 40(3) of the Insurance Contracts Act 1984 (Cth). The insured, LU Simon Builders Pty Ltd, had provided notice to the insurer, Ms Amlin Corporate Member Limited, during the period of insurance, but the claims were made after the policy had expired. The dispute centred around whether the notice given by the insured was adequate to satisfy the requirements of section 40(3) of the Insurance Contracts Act 1984 (Cth), and whether expert opinion can constitute “facts” for the purposes of that section.

The primary legal issue before the Court was whether the respondents had given notice to the applicants and the third respondent of any facts that gave rise to the Atlantis Claims, in the sense contemplated by section 40(3) of the Insurance Contracts Act 1984 (Cth), prior to the expiry of the 2014/15 Policies. This required the Court to consider the nature of the notice given by the insured, and whether it was sufficient to satisfy the requirements of section 40(3) of the Insurance Contracts Act 1984 (Cth). Additionally, the Court had to determine whether expert opinion could be considered as “facts” for the purposes of that section.

The Court found that the respondents had given notice to the applicants and the third respondent of any facts that gave rise to the Atlantis Claims, in the sense contemplated by section 40(3) of the Insurance Contracts Act 1984 (Cth), prior to the expiry of the 2014/15 Policies. The Court held that the notice given by the insured was sufficient to satisfy the requirements of section 40(3) of the Insurance Contracts Act 1984 (Cth), as it provided the insurer with sufficient information to investigate the claims and determine whether they were covered by the policy. Furthermore, the Court held that expert opinion could be considered as “facts” for the purposes of that section, as it provided the insurer with the necessary information to assess the validity of the claims.

The Court ordered that the Separate Question be answered in the affirmative, and that the parties file and serve written submissions (not exceeding 5 pages) together with any affidavit in support on the questions of costs, consequential orders and future case management by 12 June 2023. The parties were also required to file and serve any written submissions in reply (not exceeding 3 pages) together with any affidavit in support by 19 June 2023. Entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.