HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296

HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296

On their proper construction, the words 'declared to be quarantinable diseases under the Quarantine Act 1908 (Cth) and subsequent amendments' in the policies do not extend to diseases listed under the Biosecurity Act 2015 (Cth). The exclusion clause does not apply to COVID-19, which was not declared a quarantinable disease under the now-repealed Quarantine Act, and there is no basis for correcting the language by construction, as the mistake (if any) does not meet the threshold of absurdity nor is the parties’ objective intention clear enough to warrant such correction.

Jurisdiction
Australia
Judgment Date
18 November 2020
Procedural Posture
Appeal / Principal Judgment of Court of Appeal
Outcome
Summons dismissed; declarations made in favour of insureds; cross-claim otherwise dismissed; no order as to costs.
Legal Topics
['construction of Insurance Policies' 'interpretation of Exclusion Clauses' 'ambiguity and Mistakes in Contract Drafting']
['contract Law' 'insurance Law'] ['construction of Insurance Policies' 'interpretation of Exclusion Clauses' 'ambiguity and Mistakes in Contract Drafting']

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Procedural Posture

Appeal / Principal Judgment of Court of Appeal

Legal Issues

  1. 1 ["Whether exclusion clause in insurance policies referring to 'diseases declared to be quarantinable diseases under the Australian Quarantine Act 1908 and subsequent amendments' extends to diseases listed under the Biosecurity Act 2015 (Cth)" 'Whether reference to repealed legislation in insurance contracts is to be construed as reference to replacement legislation' 'Whether the contractual language can be corrected by construction due to alleged mistake']

Ratio Decidendi

On their proper construction, the words 'declared to be quarantinable diseases under the Quarantine Act 1908 (Cth) and subsequent amendments' in the policies do not extend to diseases listed under the Biosecurity Act 2015 (Cth). The exclusion clause does not apply to COVID-19, which was not declared a quarantinable disease under the now-repealed Quarantine Act, and there is no basis for correcting the language by construction, as the mistake (if any) does not meet the threshold of absurdity nor is the parties’ objective intention clear enough to warrant such correction.

Court Disposition

Summons dismissed; declarations made in favour of insureds; cross-claim otherwise dismissed; no order as to costs.

Orders

  • ['Summons dismissed.' "Declaration: On the proper construction of the 'Tourist Parks & Lifestyle Villages Insurance Policy' issued by the first plaintiff to the first, second, and third defendants for the cover period 28 February 2020 to 28 February 2021, COVID-19 is not a disease declared to be a quarantinable...