Abstract

Article

Putting Plaintiff to Proof

It is permissible for a defendant to put the plaitiff on proof of the allegations necssary to support the cause of action rather than to assume the onus of proof arising from positive allegations in the defence: Hammoud Brothers Pty Ltd v Insurance Australia [2004] NSWCA 366; Allianz Australia Ltd v Taylor [2018] VSC 78..

Agent’s Knowledge in Materiaal Disclosure

An insured may be fixed with the knowledge of his agent who arranges the insurance on his behalf, Lindsay v CIC Insurance Ltd (1989) 16 NSWLR 673. whether the insured has knwledge  of the matter or not. Macquarie Bank Limited v National Mutual Life Associate Australia Limited(1996) 40 NSWLR 543, 611; Tosich v Tasman Investment Management Ltd[2008] FCA 377. A principal may be liable for his agent’s actions in the exercise of actual or ostensible authority while acting in the principal’s interests, benefit, or at his direction. Agency is a legal relationship with legal features and effects. Whether it has been created depends on specific facts, but the conclusion is a matter of law. At common law it is a fiduciary relationship between two parties of whom one authorises the other’s acting on his behalf with other parties, and the agent undertakes to do so as if it were performed by the principal. International Harvester v Carrigan’s Hazeldene’s Pastoral Co [1958] HCA 16; (1958) 100 CLR 644, 652. The agent must act in the principal’s interests and not improperly receive a benefit without the principal’s authority or without accounting for it. It is not limited to commercial situations. Nor, if the principal’s interest is and is necessarily advanced is itrelevant that the agent’s interest is also advanced by such conduct.

The duties of material disclose, and not to misrepresent are limited to the person making the contract, who bears the consequences of noncompliancein the fate of the policy. CE Heath Casualty & General Insurance Limited v Grey (1993) 32 NSWLR 25.; ABN Amro Bank NV v Bathurst Regional Council[2014] FCAFC 65; [2014] 224 FCR 1., but if an agent, including an added insured, takes out or renews the policy on behalf of the insured, the duty applies to the agent, involving the agent’s knowledge as well as that of the principal. A breach entitles the insurer to rely on its remedies under the Act in respect of the policy, which may defeat the interest of an added insured. Accordingly, if as the named iinsured’s agent an added insured renews the policy and is in breach of material disclosure, the insurer is entitled to its remedies under the Insurance Contract Acts 1984 (Cth), since the added insured’s cover falls with the policy. Allianz Australia Ltd v Taylor [2018] VSC 78.