Suncorp General Insurance Limited v Cheihk

Suncorp General Insurance Limited appealed to the Court of Appeal of New South Wales against a decision of the District Court which found in favour of the insured, Mr Cheihk. The dispute concerned Suncorp's refusal to indemnify Mr Cheihk under his motor vehicle insurance policy after his car was stolen. Suncorp alleged that Mr Cheihk had acted fraudulently by failing to disclose his poor driving record.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether Mr Cheihk had breached his duty of disclosure under section 21 of the *Insurance Contracts Act 1984* (Cth) by failing to disclose his driving record. Secondly, whether Suncorp had fulfilled its obligation under section 22 of the Act to clearly inform Mr Cheihk of the nature and effect of his duty of disclosure, and if so, whether the onus of proof for this rested on Suncorp.

The Court of Appeal upheld the District Court's decision, finding that Suncorp had failed to discharge its onus of proving that it had clearly informed Mr Cheihk of the nature and effect of his duty of disclosure as required by section 22 of the *Insurance Contracts Act 1984* (Cth). The Court reasoned that without evidence demonstrating that Suncorp had adequately explained this duty, it could not rely on a breach of that duty to avoid its liability to indemnify Mr Cheihk. Consequently, the appeal was dismissed with costs.