Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 (20 July 2021) (Allsop CJ, Besanko and Middleton JJ)


Catchwords:


INSURANCE – third party liability claims by construction company for serious building defects occurring after practical completion but within 12 month defects liability period – two policies with separate insurers – cover denied by insurer of annual policy as outside period of insurance – whether proper construction of the policy, through the “run off” condition, can provide for “contracts commencing” cover, contract by contract, that includes defects liability period

INSURANCE – cover denied by underwriter of later policy as outside scope of cover – proper construction of insuring clause: damage in connection with “Insured’s Products Liability and/or Completed Operations” – whether completed building and/or its component parts, including hobs, slabs, columns and walls, were a “product or thing” within the meaning of “Product” and whole policy – whether “Completed Operations” only covers damage occurring in policy period for completed projects for which defects liability period has expired – relevance of distinction between “Products Liability” and “Completed Operations” and “and/or” and exclusions – where “erected” included in definition of “Product” but not “built” or “constructed”

EQUITY – rectification – whether parties held a common intention to effect contracts commencing cover – where parties represented by experienced insurance brokers – relevance of their intentions – actual and ostensible authority – weight to be given to trial judge’s advantage of assessing witness credibility