MS Amlin Corporate Member Limited v LU Simon Builders Pty Ltd [2023] FCA 581

MS Amlin Corporate Member Limited v LU Simon Builders Pty Ltd [2023] FCA 581

Notice given by the insured prior to expiry of the relevant policies sufficiently notified facts, including expert opinions by public authorities about widespread use of non-compliant ACPs in high-rise buildings, which gave rise to the Atlantis Claims; thus, insurers are not relieved of liability under the policies by reason only that the claims were made after the period of insurance cover.

Jurisdiction
Australia
Judgment Date
05 June 2023
Procedural Posture
Commercial Contracts – Insurance Coverage Dispute / Determination of a Separate Question Under R 30.01; Preliminary Question Decided
Outcome
Separate Question answered: Yes—the insured gave notice to the insurers of facts that gave rise to the Atlantis Claims per s 40(3).
Legal Topics
['professional Indemnity Insurance' 'notification of Facts' 'combustible Cladding' 'section 40(3) Insurance Contracts Act' "expert Opinions as 'facts'" 'building Compliance' 'statutory Warranties']
['insurance Law' 'commercial Law' 'building and Construction Law'] ['professional Indemnity Insurance' 'notification of Facts' 'combustible Cladding' 'section 40(3) Insurance Contracts Act' "expert Opinions as 'facts'" 'building Compliance' 'statutory Warranties']

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Procedural Posture

Commercial Contracts – Insurance Coverage Dispute / Determination of a Separate Question Under R 30.01; Preliminary Question Decided

Legal Issues

  1. 1 ['Whether notice was given for the purposes of s 40(3) Insurance Contracts Act' 'Whether notified facts encompassed claims regarding Atlantis Towers' "Whether expert opinions constitute 'facts' under s 40(3)" 'Whether correspondence exists between notification and later claims']

Ratio Decidendi

Notice given by the insured prior to expiry of the relevant policies sufficiently notified facts, including expert opinions by public authorities about widespread use of non-compliant ACPs in high-rise buildings, which gave rise to the Atlantis Claims; thus, insurers are not relieved of liability under the policies by reason only that the claims were made after the period of insurance cover.

Court Disposition

Separate Question answered: Yes—the insured gave notice to the insurers of facts that gave rise to the Atlantis Claims per s 40(3).

Orders

  • ['1. The Separate Question answered: Yes.' '2. Parties to file and serve written submissions (max 5 pages) and any affidavit on costs, consequential orders and future case management by 12 June 2023.' '3. Any submissions in reply (max 3 pages) and any affidavit to be filed and served by 19 June 2023.']