Plasteel Windows Australia Pty Limited & Anor v Ce Heath Underwriting Agencies Pty Ltd; Plasteel Windows Australia Pty Limited & Anor v Ce Heath Underwriting Agencies Pty Ltd

These proceedings involved applications for special leave to appeal to the High Court of Australia. The applicants were Plasteel Windows Australia Pty Limited and Plascon Industries Pty Limited, and the respondent was C.E. Heath Underwriting Agencies Pty Ltd. The dispute concerned insurance contracts and grounds for avoidance raised by the insurer. The applications were heard by Deane J.

The primary legal issue before the High Court, as presented by the applicants, concerned the interpretation and application of section 31 of the *Insurance Contracts Act 1984* (Cth). This section empowers a court to disregard an insurer's avoidance of a policy in cases of fraudulent misrepresentation or non-disclosure, if it would be harsh and unfair not to do so, and if the insurer has not been prejudiced by the conduct. The applicants sought to argue that the Court of Appeal had erred in its consideration of this provision.

Deane J noted that a question of fact regarding the practice of signing proposals on behalf of clients had been raised at trial and was subject to concurrent findings. The applicants indicated they would seek special leave on this factual issue only as a last resort, acknowledging it might be precluded by the concurrent findings. The focus of the argument for special leave was therefore on the section 31 point, with the applicants seeking to persuade the Court that the insurer had not been prejudiced by the relevant conduct, a prerequisite for the court to exercise its discretion under section 31(2).