P and S Kauter Investments Pty Ltd v Arch Underwriting at Lloyds Ltd [2021] NSWCA 136 (02 July 2021) (Bathurst CJ at [1]; Bell P at [2]; Meagher JA at [3])


Catchwords:


INSURANCE – professional indemnity insurance – claims made and notified policy – where insurers notified within policy period of “chance of a claim” by insured’s clients for any loss “that may be incurred” – whether notification of “facts that might give rise to a claim” engaging Insurance Contracts Act 1984 (Cth), s 40(3) – whether loss more than a potential possibility on notified facts

INSURANCE – non-disclosure and misrepresentation – where dispute about extent of disclosure – whether non-disclosure entitling insurers to reduce liability to nil under Insurance Contracts Act 1984 (Cth), s 28(3) – whether evidence that insurers would not have issued policy but for non-disclosure directed to undisclosed matters distributively or taken together

INSURANCE – non-disclosure and misrepresentation – where insurers seek to avoid policy for fraudulent misrepresentation under Insurance Contracts Act 1984 (Cth), s 28(2) –whether fraudulent misrepresentations specifically pleaded – whether misrepresentations concerning matters of fact or statements of opinion

COSTS – where separate proceedings against same defendants heard together – where most issues of fact and law common or closely related – where plaintiffs and defendants represented by the same lawyers in each proceeding – whether plaintiffs should be jointly and severally liable for defendants’ costs