Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd (No 2) [2021] FCAFC 131

Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd (No 2) [2021] FCAFC 131

Icon invoked condition 15 of the Third Party Liability Policy in November 2015, thereby obtaining coverage for the Opal Tower project up to and including the end of the relevant defects or maintenance periods such that the cracking observed in December 2018 was covered as an Occurrence within the policy period. Orders of the primary judge inconsistent with this were set aside. In relation to QBE, the claim by Icon was dismissed.

Jurisdiction
Australia
Judgment Date
29 July 2021
Procedural Posture
Appeal and Cross Appeal / Orders Following Judgment on Appeal
Outcome
Cross-appeal allowed in part, appeal dismissed in Liberty matter; appeal allowed in QBE matter.
Legal Topics
['third Party Liability Insurance' 'construction Contracts' 'occurrence of Insured Event']
['insurance Law' 'commercial Law'] ['third Party Liability Insurance' 'construction Contracts' 'occurrence of Insured Event']

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Procedural Posture

Appeal and Cross Appeal / Orders Following Judgment on Appeal

Legal Issues

  1. 1 ['Whether insurance cover under Third Party Liability Policy was validly invoked and in force in relation to the Opal Tower project as at December 2018' "Whether the cracking observed at Opal Tower in December 2018 constituted an 'Occurrence' during the cover period under the policy" 'Whether Icon’s claim against QBE should be dismissed']

Ratio Decidendi

Icon invoked condition 15 of the Third Party Liability Policy in November 2015, thereby obtaining coverage for the Opal Tower project up to and including the end of the relevant defects or maintenance periods such that the cracking observed in December 2018 was covered as an Occurrence within the policy period. Orders of the primary judge inconsistent with this were set aside. In relation to QBE, the claim by Icon was dismissed.

Court Disposition

Cross-appeal allowed in part, appeal dismissed in Liberty matter; appeal allowed in QBE matter.

Orders

  • ['The cross-appeal be allowed (Liberty matter).' 'The appeal be dismissed (Liberty matter).' 'Orders 1 and 2 and declaration 6 made on 26 October 2020 in VID781/2019 be set aside and replaced with: declaration as to invocation of condition 15 by Icon in November 2015 and coverage through December 2018; declaration...