District Court New South Wales

• Medium Neutral Citation: Haddad v Allianz Australia Insurance Ltd [2014] NSWDC 132
• Decision date: 13 May 2014
• Before: Cogswell SC DCJ

Decision

Verdict and judgment in favour of the plaintiff.

• Catchwords: Civil Law - Contract - home insurance policy - insurance company denied claim - whether insurance company liable - extensive pleadings - insurance company unilaterally cancelled contract - breach s 63(1) of the Insurance Contracts Act and the insurance policy - relief sought (damages) not barred by s 15 of the Insurance Contracts Act - no evidence of unconscionable conduct - representations - objective test - policy conditions not misleading and deceptive - continued dealing with plaintiff misleading - breached s 18 of the Australian Consumer Law - estoppel - no basis for conventional or promissory estoppel - question of quantum separated.
• Legislation Cited: Competition and Consumer Act 2010 (Cth), sch 2, ss 20, 21, 22.; Credit Act 1984 (Vic).; Insurance Contracts Act 1984 (NSW) ss 15, 58, 59, 60, 63.
• Cases Cited: Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17; 253 ALR 324.; Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; 214 CLR 51; 77 ALJR 926.; Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682.; Blomley v Ryan [1956] HCA 81; 99 CLR 362.; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384; 71 ALJR 312.; Davis v CGU Insurance Ltd [2009] SASC 220; 104 SASR 422.; Hurley v McDonald's Australia Ltd [1999] FCA 1728.; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; 141 CLR 191; 56 ALRJ 715.; Swann Insurance (Aust) Pty Ltd v Fraillon [1992] 1 VR 401; 6 ANZ Ins Cas 61-055.; Waterman v Gerling Australia Insurance Co Pty Ltd [2005] NSWSC 1066; 65 NSWLR 300.
• Texts Cited: Macquarie Dictionary (6th ed 2013) Macquarie Dictionary Publishers Pty Ltd.
• Category: Principal judgment
• Parties: Sally Haddad (plaintiff); Allianz Australia Insurance Limited (defendant)
• Representation: Counsel: S Haddad (plaintiff); DP O'Connor (defendant)
• File Number(s): DC 2012/00093399

Judgment

Introduction

1 Sally Haddad had a house in Wadalba in New South Wales. She took out a home insurance policy to cover it. The policy was with Allianz. She took it out in 2003, renewing it annually. In 2007, a storm damaged the house. Sally Haddad made a claim and Allianz paid the claim. Then a couple of years later in 2009, she made another claim. The same storm had caused some delayed damage. Allianz paid that claim too. In 2010 some vandals caused a lot of damage to the house. When she made another claim for that damage, Allianz denied the claim and told her she was no longer covered by any policy with them.

2 This case is about whether Allianz is liable, in one way or another, to pay for the damage to Sally Haddad's house caused by the vandals.

3 Sally Haddad took up the issue with Allianz. They reviewed it and refused to pay. She then went to the Financial Ombudsman's Service. They agreed that Allianz did not have to pay. Finally, she sued Allianz in the District Court. I heard the case which started on 22 January 2014 and, after some adjournments, finished on 24 February 2014.

4 Sally Haddad was represented by Ms S Haddad of counsel. Allianz, whose legal identity is Allianz Australia Insurance Ltd, was represented by Mr D P O'Connor of counsel.

Some observations

5 I propose to make some preliminary observations about how I will approach the case. The first is that as a result of a direction given by his Honour Judge Elkaim SC, the hearing before me proceeded in respect of liability only. The question of quantum has been separated.

6 Secondly, I will decide the case by reference to the terms of the contract and statute. An insurance policy is a contract. It is an express and written contract with clear terms and conditions. It is supplemented in Australia by statute law, the Insurance Contracts Act 1984 (Cth). The terms and conditions of the contract of insurance and the Insurance Contracts Act will provide the primary terms of reference for me to decide the case.

7 Next, the purpose of pleadings is to define the issues in any case. I can decide only a claim that has been pleaded. The pleadings in this case were extensive. Allegations were levelled against Allianz and met by Allianz, and Allianz made counter assertions. The pleadings will share with the contract and Insurance Contracts Act primary terms of reference for me to decide the case.

8 Next, it is fair to observe that there seemed to me to be a fair amount of personal tension between counsel for Ms Haddad and Allianz. This happens in cases and I do not attribute any blame. For example, counsel could not agree on defining the issues in the case. They were in agreement about some items, but could not agree on a joint document. It was also apparent in parts of their written submissions. Although a distracting factor for a judge, it will not, of course, affect my decision. That is one reason I am relying, as I should, more on the pleadings than the statements of issues provided by the parties, although I expect I will determine the issues raised by those statements of issues.

The pleadings

9 Sally Haddad's claim against Allianz was articulated in an amended statement of claim filed on 25 October 2012. Allianz's defence to her claim was filed earlier, on 8 May 2012 in response to an earlier statement of claim. It was common ground that the earlier defence was a relevant defence to the amended statement of claim filed on 25 October 2012.

10 Sally Haddad claims, in her amended statement of claim, that Allianz is liable on four bases. First, she says that Allianz breached the policy of insurance - which of course was the contract between them - in the ways that she claims at [39-40] of the amended statement of claim. Allianz denies this at [21] of its defence. Secondly, Sally Haddad says that Allianz engaged in unconscionable conduct. She asserts that Allianz has engaged in such conduct in breach of ss 20, 21, and 22 of the Australian Consumer Law. That is Schedule 2 to the Competition and Consumer Act 2010 (Cth). She makes and particularises that claim at [43] of the amended statement of claim. Again, Allianz denies that claim at [21] of its defence and also asserts that the Australian Consumer Law is not applicable to this case because of s 15 of the Insurance Contracts Act. Thirdly, Sally Haddad claims that certain representations were made to her by Allianz. They are particularised at [7] of the amended statement of claim. She says those representations were misleading and deceptive, or likely to mislead and deceive her, in her entry into the insurance policy. She makes those claims at [49-51] of the amended statement of claim. Again, at [21] of its defence, Allianz denies this claim. Finally, Sally Haddad claims that Allianz is estopped from asserting certain propositions which are contained at [48] of the amended statement of claim. Again, Allianz denies that assertion at [21] of its defence.

What happened

11 What happened is this. The policy was to expire - and was due to be renewed - on 22 July 2009. On 11 June 2009 (exhibit B, annexure G) Jim Haddad, Sally Haddad's husband, on behalf of Sally Haddad, contacted Allianz regarding the delayed damage from the 2007 storm. The delayed damage was a problem with sunken power poles. Jim Haddad spoke to an agent appointed by Allianz, Scott McKenzie. Jim Haddad and Scott McKenzie spoke about the earlier claim paid in 2007, and whether all the repairs to the damaged building had been done after that claim had settled. Scott McKenzie then sent an email (exhibit B, annexure O) to Laurel Rooke of Allianz, suggesting that Allianz "ask for an occupancy details and confirmation of building repairs done".

12 Someone within Allianz was obviously concerned about whether the house might have been unoccupied for more than 60 days. That would mean that Allianz would not have to pay for any damage (exhibit B, annexure A, p 42 of the policy). That concern was followed up by Laurel Rooke by sending an email to the underwriting department of Allianz. This she did on 18 June 2009, the same day that she spoke to Scott McKenzie (exhibit B, annexure G). The email was marked "URGENT" and concerned "confirmation of completion of repairs" and "Unoccupancy". Laurel Rooke pointed out that the policy was "up for renewal again on 22.7.2009" and proposed some "issues that you may wish to review prior to offering renewal". The issues were whether or not repairs had been completed from the previous settlement "to satisfy that premises is in good order and repair"; whether the premises had "been unoccupied" since the settlement; and whether the premises were currently unoccupied.

13 What was meant to happen - according to the affidavit of Renee Burke explaining the usual procedure - was that Allianz was to write a letter to its customer concerning any issues on renewal (exhibit 1, [9]). This should have happened for the three concerns raised in this case by Laurel Rooke. They should have been made the subject of a letter to Sally Haddad. No such letter was sent and, additionally, Allianz failed to send any letter to Sally Haddad advising her that the policy was up for renewal.

14 Not only were these letters not sent, but Allianz for its own part took positive action regarding Sally Haddad's policy. Exhibit B, annexure U shows that on 19 June 2009, the day after Laurel Rooke's email, an entry was made at about 4.30pm in Allianz's records to the effect that Allianz required "additional information prior to offering a renewal". It noted that the "property may have been unoccupied since 2007" and that "proof of repairs" was required. Within half an hour, the record showed, regarding Sally Haddad's policy, "Lapsed due to underwriting decline". Renee Burke annexed to her affidavit as an annexure A a "computer screen shot" from Allianz's electronic records. That showed that on the same date, 19 June 2009, the status of the policy was described as "lapsed" and in response to a question on the form called "Reason terminated" were the initials "RA" which Renee Burke explained (at T147) means risk unacceptable.

15 There was evidence given on behalf of Allianz by Renee Burke about what "lapsed" meant. She said (at T60) that when a "policy lapses it ceases to be covered from the date of the expiry" meaning "ceases to provide cover". She agreed that there was no definition of "lapsed" in the policy itself. Allianz claimed that the policy had simply lapsed once the expiry date was reached on 22 July 2009 because, by oversight, no renewal notice was sent (in addition to no repairs letter being sent). Sally Haddad, on other hand, argues that Allianz had in fact cancelled the policy contrary to the terms of the policy before it had expired. Either way, when Sally Haddad made her claim in 2010 there was no policy to cover her.

Breach of contract?

16 This leads me to my consideration of the first issue in the case, namely whether or not, as claimed by Sally Haddad, Allianz breached the insurance policy. Sally Haddad claimed that Allianz breached the renewal procedure under the policy "by unilaterally stopping the automatic renewal process" specified in the policy (see [39] of the amended statement of claim).

17 I do not think that claim is made out. The policy provides (at p 49, exhibit B, annexure A) for a "Renewal procedure". It says that before the policy expires, "we will normally offer renewal by sending a renewal invitation advising the amount payable to renew this policy." I can find nothing in the policy about the claimed "automatic renewal process". There is evidence from Renee Burke about the procedures which occur approaching the renewal date (exhibit 1). But the document which regulates the legal relationship between the parties - and, I repeat, this is the basis upon which I must decide the case - is the insurance policy. Far from being an "automatic" process, Allianz promises to do no more than "normally" offer renewal. If renewal is offered it is in the form of a "renewal invitation", requiring a response from the person insured. Information is sent to the insured person who in turn is required by the policy to "carefully check the details", as well as checking "the sums insured before renewing each year to satisfy yourself that they continue to represent current full replacement values." I am not satisfied that Sally Haddad has proved that Allianz has breached the policy "by unilaterally stopping the automatic renewal process."

18 Sally Haddad also claims that Allianz "breached Clause 5 of the Policy by unilaterally deciding to cancel the Policy". I take the reference to cl 5 to be to the part of the policy under the heading "Conditions of cover". It specifies "cancellation rights" and says that Allianz has "the right to cancel this policy where permitted by law." That is clearly a reference to ss 59, 60 and 63 of the Insurance Contracts Act.

19 Allianz argues that it never cancelled the policy. All that happened was that the policy lapsed when it expired on 22 July 2009 without renewal. Sally Haddad, on the other hand, argues that Allianz's own records show that Allianz cancelled the contract.

20 I agree with Sally Haddad. I do not think that the argument of Allianz about the policy lapsing is consistent with the terms of the policy. I repeat, it is the policy that is the contract between the two parties in this case. First, there is no definition of "lapsed" in the policy or indeed in the Insurance Contracts Act. There is a reference to it in Renee Burke's evidence as being referred to in Allianz's internal systems. Although the evidence went no further than that, it would not matter, in my opinion, if the internal systems contain some definition. Whatever the definition was, it did not form part of the contract between Allianz and this insured person. There was a reference in the evidence (for example, Renee Burke at T96.28) to Allianz making "a decision to lapse" (emphasis added) the policy.

21 That seemed to me to be an unusual use of the word as a transitive verb. My understanding is supported by the Macquarie Dictionary (6th ed 2013, Macquarie Dictionary Publishers Pty Ltd)'s definition of the verb to "lapse" (see MFI 18).

22 It seems to me that a policy comes to an end by either lapsing at the end of its term in the event of it not being renewed (or, indeed, renewal not being offered) or by being cancelled by one of the parties. Mr McCaffrey's understanding seems to be the same. (See, for example, T236-237.) I do appreciate that Mr McCaffrey's experience is not in underwriting and therefore carries less weight, but I just note that his view is consistent with the view I have reached independently.

23 Clearly Allianz had information about issues of repairs and occupancy that it was entitled to investigate. It had a choice of actions. One was to send out a letter of inquiry and to keep the policy on foot in the meantime. The answer - or getting no answer - could have affected the policy itself and become a basis for cancelling the policy or a basis for refusing cover under the terms of the policy. Another choice that Allianz had was to take some form of action regarding the status of the policy with the information which it had at hand, perhaps with a letter going out as well.

24 It seems to me that Allianz decided to act on the information that it had at hand, regardless of its reliability or the results of any investigation. It could not "lapse" the policy, because that describes an event which occurs at the expiry of the policy. Although expressed in its own records in terms of "lapse" that expression makes no sense before the expiry date, nor does it have any contractual meaning. In other words, the expression "lapsed" had no meaning in the contractual relationship between Sally Haddad and Allianz. But clearly Allianz had taken action. The records show as much.

25 Another expression used in the records - "terminated" - although not a word used in the contract, has an ordinary meaning that is synonymous with cancel. I comfortably conclude that the reference to "termination" or "terminated" in the Allianz records amounts to a cancellation of the policy. It seems to me that the records show that Allianz decided that the information it had, pointed to an unacceptable risk and therefore cancelled or terminated in its records the policy. It is clear to me that - in terms of the contract - Allianz purported to cancel the policy and it did so unilaterally.

26 I think that what Sally Haddad asserts at [40] of the amended statement of claim is right. The policy said that Allianz has "the right to cancel this policy where permitted by law". The law contained in the Insurance Contracts Act provided for the basis of a cancellation and for a cancellation procedure. It is clear to me that there was no basis to cancel the contract relying on any of the provisions of s 60(1) of the Insurance Contracts Act. Allianz was concerned about whether Sally Haddad had "failed to comply with the provisions of the contract", but it was clearly still investigating that concern. It seems to me that it neither had a basis to cancel the contract, nor did it follow the statutory cancellation procedure. In my opinion, Allianz, being in breach of s 63(1) of the Insurance Contracts Act, was also in breach of the policy.

Section 15 of the Insurance Contracts Act

27 I turn now to the relief which Sally Haddad claims by reference to the Australian Consumer Law. Mr O'Connor takes a preliminary point about all of that statutory relief. He points to s 15 of the Insurance Contracts Act and argues that the contract of insurance between Sally Haddad and his client "is not capable of being made the subject of relief" under the legislation which Sally Haddad relies upon. In support of his submission Mr O'Connor refers me to a decision of the Appeal Division of the Supreme Court of Victoria in Swann Insurance (Aust) Pty Ltd v Fraillon [1992] 1 VR 401; 6 ANZ Ins Cas 61-055. That was a case where a claim was also made under the Credit Act 1984 (Vic). Murphy J (with whom McGarvie and Gobbo JJ agreed) said about the Victorian Credit Act that it "on any view, provides for relief in respect of unjust contracts, which are regulated contracts. Such an Act cannot make a contract of insurance, to which the Commonwealth Act applies, the subject of relief."

28 In my opinion, Mr O'Connor's argument is not made out. Section 15(2) defines the "Relief to which subsection (1) applies". It specifies two forms of relief namely, "judicial review of a contract on the ground that it is harsh, oppressive, unconscionable, unjust, unfair or inequitable" or "relief for insureds from the consequences in law of making a misrepresentation". It seems to me that Sally Haddad is not seeking relief from the contract on the basis that the contract itself has any of the qualities described in the first form of relief. (She is not relying on any legislation such as that referred to in Swann Insurance.) Nor is she seeking relief in respect of any misrepresentation by her. What she is seeking, of course, is damages for a breach of contract and statutory damages for the statutory relief to which she claims she is entitled. Section 15(2) goes on to clarify the meaning of the relief which is put outside the scope of the Insurance Contracts Act. Section 15(2) having specified the kind of relief which is not available, goes on to provide that it "does not include relief in the form of compensatory damages." To my mind, a plain reading of that section and an examination of the pleadings in this case mean that the relief which Sally Haddad relies upon is not barred by s 15 of the Insurance Contracts Act. She is seeking damages and not relief of the kind referred to in s 15(2)(a) and (b).

Unconscionable conduct?

29 I turn now to the specific claims made by Sally Haddad. She claims that Allianz had engaged in unconscionable conduct within the meaning of ss 20 - 22 of the Australian Consumer Law.

30 Two observations can be made about Sally Haddad's broad assertion of reliance on sections 20-22 of the Australian Consumer Law. First, s 20(2) provides that the section "does not apply to conduct that is prohibited by section 21 or 22." The second is that the meaning of "unconscionable" is more limited in section 20 than in sections 21-22. Gordon J referred to this second point in Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682. His Honour referred at [17] to a decision of Foster J in Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17; 253 ALR 324. Gordon J extracted passages from [113] of Foster J's judgement. In that paragraph, Foster J said that the "scope of s 51AC [now s 22] is wider than of s 51AA [now s 20]. The meaning of unconscionable for the purposes of s 51AC is not limited to the meaning of the word according to established principles of common law and equity". His Honour went on to say that the "ordinary or dictionary meaning of unconscionable, which involves notions of serious misconduct or something which is clearly unfair or unreasonable, is picked up by the use of the word in section 51AC. When used in that section, the expression requires that the actions of the alleged contravenor show no regard for conscience, and be irreconcilable with what is right or reasonable. Inevitably the expression imports a pejorative moral judgement...." (See also the original use of these expressions in Hurley v McDonald's Australia Ltd [1999] FCA 1728 at [22].) Gordon J added, by reference to authority, that normally some "moral fault or moral responsibility would be involved" which would "not ordinarily be present if the critical actions are merely negligent". His Honour went on to observe there would "ordinarily need to be a deliberate (in the sense of intentional) or at least a reckless act."

31 I shall consider Allianz's liability under sections 21-22 first. To the extent that Sally Haddad relies on sections 21-22, the meaning is as I have just set out. There is no evidence that Allianz acted in a way that could be described in those terms. There is evidence of a breakdown in internal processes and procedures. It may have been careless of Allianz not to check with Sally Haddad whether she had made alternative insurance arrangements. But in my opinion there is no evidence of unconscionable conduct by Allianz.

32 The meaning of "unconscionable" in section 20 was considered by the High Court of Australia in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; 214 CLR 51; 77 ALJR 926. At [14] Gleeson CJ referred to the "[u]nconscientious exploitation of another's inability, or diminished ability, to conserve his or her own interests". His Honour had obviously derived part of his articulation from the passage he had just extracted in the previous paragraph from the High Court's judgment in Blomley v Ryan [1956] HCA 81; 99 CLR 362. The passage which Gleeson CJ had extracted from that case was in the judgment of Kitto J in the following terms -

"It applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands."

In Berbatis Holdings Gummow and Hayne JJ also saw a meaning of the expression "conduct that is unconscionable within the meaning of the unwritten law" as "identifying particular categories of case".

33 I do not see how Allianz has engaged "in conduct that is unconscionable, within the meaning of the unwritten law from time to time", to use the expression in s 20 of the Australian Consumer Law, in the way pleaded in [43] of the amended statement of claim. To my mind, there is no unconscientious taking advantage or exploitation of Sally Haddad's ability to protect her own interests. She did have a reduced capacity because of her ignorance, but I am not satisfied that Allianz knew that she was ignorant of the status of her policy. I am not satisfied that Sally Haddad has made good her reliance on ss 20, 21 and 22 of the Australian Consumer Law.

34 I repeat, I do not think that Allianz has acted unconscionably in any of the ways claimed by Sally Haddad. Although Allianz breached the policy in cancelling it, I am not satisfied that it knew that Sally Haddad assumed that she was still insured. In any case, she remained insured by the "statutory cover" until 22 July 2010. I think there were systemic failures within Allianz - that is acknowledged by Allianz - and perhaps an oversight in not checking with Sally Haddad about her understanding of her insurance cover. But what Sally Haddad has not proved is any unconscionable taking advantage of her by Allianz, or any unconscionable conduct on the part of Allianz in the broader sense.

Section 58 of the Insurance Contracts Act and CIC Insurance Ltd v Bankstown Football Club

35 One of Sally Haddad's arguments which she advances in cl 43(c) of the amended statement of claim is that Allianz's reliance on s 58 of the Insurance Contracts Act deprived her of her entitlement to insurance, thereby amounting to unconscionable conduct. I do not see how reliance by Allianz in these proceedings on s 58 of that Act deprived Sally Haddad of her entitlement to insurance. It is simply what the law is. There is a "statutory contract", to use an expression from the High Court's judgment in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384; 71 ALJR 312. Such a statutory contract exists "by force" of s 58. Allianz has drawn attention to s 58 in the context of these proceedings. Its action cannot be correctly described as "applying" s 58. Section 58 simply operated in the circumstances to extend the cover. There was no unconscionable conduct involved, in my opinion.

36 It must be borne in mind that, as a result of s 63 of the Insurance Contracts Act, whereas the purported cancellation of the policy by Allianz constituted a breach of the policy, the cancellation itself was ineffective. That meant, in my opinion, that s 58 took its course. Ms Haddad argues on behalf of her client that s 58 did not apply because Allianz's actions meant that the policy was not "renewable insurance cover" as defined in s 58(1) of the Insurance Contracts Act. But that definition provides by cl (b) that it is cover "of a kind that it is usual to renew or for renewal of which it is usual to negotiate." Both those general terms apply, in my opinion, to the contract in this case.

37 It must also be borne in mind, as Mr O'Connor argued, that the point in CIC Insurance Ltd v Bankstown Football Club was different to what happened in this case. The decision in that case is not applicable to the circumstances in this case. In that case there had been an earlier, effective and legal cancellation of the insurance policy. The Court's decision turned upon the significance of the contract in that case expiring under s 58(2). In this case the contract was purportedly cancelled by Allianz, but that cancellation was ineffective and s 58 took its course and meant that Sally Haddad was provided with statutory cover for the year following 22 July 2009.

Misleading conduct?

38 Sally Haddad goes on to claim that certain representations were made to her in the policy itself. She says they were misleading and deceptive, or likely to mislead and deceive her in entering into the policy. These claims are made at [45-51] of the amended statement of claim. Sally Haddad relies on s 18 of the Australian Consumer Law. Allianz admits the assertions contained in [52] of the amended statement of claim that it failed to advise Sally Haddad of the breakdown in the renewal procedure; of the issues regarding the 2007 claim; and the cancellation of the policy.

39 Sally Haddad asserts in her amended statement of claim that the "representations" being terms of the policy regarding cover for malicious damage and a renewal were "misleading and deceptive, or likely to mislead and deceive the plaintiff in its entry into the policy on the prospects that the plaintiff's property at 205 Johns Road Wadalba, would be covered for building insurance on an annual basis from the year 2003 to the present." She goes on to refer to her claimed failure by Allianz to advise her of three matters: the unavailable "automatic renewal procedure"; the outstanding issues regarding the 2007 claim; and the cancellation of the policy.

40 I do not think that the policy conditions themselves, as representations, were misleading and deceptive. However, Sally Haddad had had cover with Allianz for some six years and had renewed it annually. Allianz unilaterally cancelled the policy (or allowed it to lapse in their view) without telling her. They carried on dealing with her through Jim Haddad, her representative, about paying a claim under the policy, without telling her that there was no longer any ongoing contract between them, because they had cancelled it (or let it lapse).

41 At this point, I should refer to a submission of Mr O'Connor to the effect that Sally Haddad was not called as a witness in the case. He makes a number of submissions about her absence. One of them appears at [11] of his written submissions (which were marked for identification 16) that she has "put no evidence before the Court capable of grounding a finding of fact that the plaintiff was in any way misled or deceived." That submission, with respect, misconceives what I understand to be the law which seems to be clear from the High Court's judgment in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; 141 CLR 191; 56 ALRJ 715. Gibbs CJ said at 197 that "the section is not confined to conduct that is intended to mislead or deceive". His Honour goes on to observe that "a corporation which has acted honestly and reasonably may therefore nevertheless be rendered liable to be restrained by injunction, and to pay damages, if its conduct has in fact misled or deceived or likely to mislead or deceive." His Honour said over 198 - 199 that "the Court must decide objectively whether the conduct is misleading or deceptive or likely to mislead or deceive".

42 In my opinion, the continued dealing between Allianz and Sally Haddad through her representative Jim Haddad regarding the outstanding 2007 claim during most of the latter half of 2009, without informing her through him that the policy was not to be renewed (because it had been cancelled or had lapsed) was likely to mislead her.

43 As I have said, I expect that that was a matter of an oversight by the representative of Allianz, perhaps because decisions regarding the status of the policy had been made by different people to the ones dealing with Sally Haddad's representative. But nevertheless the test under s 18 of the Australian Consumer Law is, as the High Court said, an objective one. To my mind, the ongoing discussions, as few as they may have been regarding the payment of the claim, was conduct which was likely to mislead Sally Haddad.

Estoppel?

44 Finally, Sally Haddad asserts that Allianz is estopped in the way pleaded at [48] of the amended statement of claim. I am not clear whether her reliance upon estoppel is on a conventional estoppel or a promissory estoppel. In his judgment in Waterman v Gerling Australia Insurance Co Pty Ltd [2005] NSWSC 1066; 65 NSWLR 300, Brereton J helpfully summarised at [83] the differences between what a plaintiff needs to prove to establish a promissory estoppel and to establish a conventional estoppel.

45 As for conventional estoppel in this case, there is, in my opinion, no common assumption upon which Sally Haddad and Allianz conducted their relations. Allianz never understood that it was covering Sally Haddad after 22 July 2009 (apart from the statutory cover). Nor do not think that there is any proved basis for a promissory estoppel in this case, because there is no evidence that Allianz knew or intended that Sally Haddad would act in a particular way.

46 In any event, as is clear from the decision of the Full Court of the Supreme Court of South Australia in Davis v CGU Insurance Ltd [2009] SASC 220; 104 SASR 422, any representation which Sally Haddad would need to rely upon made by Allianz must be clear and "must unambiguously state the fact which, ultimately, the maker is prevented from denying." I have quoted from Vanstone J's judgment at [24]. The Chief Justice and Layton J agreed with her Honour. Accordingly, I am not satisfied that Sally Haddad has made good any of her claims which rely upon estoppel.

Conclusions

47 For the reasons which I have given, I find in favour of Sally Haddad in her assertion that there has been a breach of the contract between her and Allianz and I find in her favour that Allianz engaged in misleading conduct towards her, in breach of s 18 of the Australian Consumer Law.

48 Accordingly, I enter a verdict and judgment in favour of the plaintiff

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Decision last updated: 19 August 2014