Constructive Notes ®
Introduction
One of the most contentious applications of s 54 of the Insurance Contracts Act 1984 (Cth) (the Act) has arisen in relation to late notification under so-called “claims made and notified” professional indemnity policies. These policies provide indemnity for claims on the basis of notification by the insured to the insurer of a claim made against the insured during the policy period, irrespective of when the act giving rise to the claim occurred.
Cover is sometimes extended by wording in the policy to include a claim made after expiry of the insurance period if, during the period of insurance, the insured became aware of facts or circumstances giving rise to the claim and notified the insurer of those facts and circumstances before the policy expired (a deemed “claim”)1.
A provision such as this reflects the operation of s 40(3) of the Act, which extends cover in “claims made and notified” policies to include a claim made after the policy period where:
“… the insured gave notice in writing to the insurer of facts that might give rise to a claim against the insured as soon as was reasonably practicable after the insured became aware of those facts but before the insurance cover provided by the contract expired …”2
Judicial authorities
The judiciary first turned its attention to the application of s 54 in relation to a “claims made and notified” policy in the decision of East End Real Estate v CE Heath Casualty & General Insurance Ltd.3
In finding that s 54 was effective to prevent the claim from failing merely because the claim against the insured was notified to the insurer after the expiration of the period of insurance cover, the court refused to read narrowly the language of s 54 and extended the operation of s 54 to acts which form part of the definition of the risk insured.4
Cole J, in Breville Appliances v Ducrou,5 was also called on to consider the application of s 54 to a “claims made and notified” policy. Unlike the situation in East End, however, which concerned the failure to notify a claim, the insured in this case sought to take the benefit of s 54 to relieve against its failure to provide notification of a “circumstance” or occurrence during a particular (earlier) policy period, so as to overcome problems with non-disclosure during the period in which the actual claim arose.
Cole J, while disagreeing with the reasoning in East End, considered the decision to be binding upon him. His Honour described the result which he felt obliged to reach as “obviously absurd”, but held that the omission or failure by the insured to give notice of circumstances was not a basis upon which the insurer could deny indemnity under the earlier policy.6
On appeal (ub nom: FAI General Insurance Co Ltd v Perry7), the majority (Gleeson CJ and Clarke JA, Kirby P dissenting) distinguished between an omission by the insured to perform an act (which would be excused by s 54) and an election by the insured not to extend its cover by notifying the insurer, pursuant to the policy condition or s 40(3), of facts which might give rise to a claim (which would not be so excused).8
In Drayton v Martin,9 Sackville J held that where an insured, under a “claims made and reported” policy, fails to comply with the contractual obligation to report a claim made within the policy period, there is an “omission” for the purposes of s 54. His Honour held that that was so whether the failure was due to a deliberate “election” by the insured not to make the notification or report, or to some other reason, such as mistake or inadvertence.10
In the New South Wales Court of Appeal in Antico v CE Heath Casualty & General Insurance Ltd,11 Kirby P, in considering whether s 54 could relieve against the insured’s failure to obtain consent to incur legal costs, declined to follow the reasoning of Clarke JA in Perry.12 Although not resiling from his own dissent in Perry, Kirby P followed the reasoning of Gleeson CJ but confined the Chief Justice’s reasoning to the case where the insured has a choice whether or not to notify the insurer of circumstances which might, in the future, give rise to a claim against him.13
On appeal to the High Court in Antico,14 it was said in the joint majority judgment:
Section 54(I) uses the phrase “by reason of some act of the insured or of some other person”. It does not specify the act or omission of the insured as being a failure to discharge an obligation owed by the insured to the insurer. The legislation is expressed in broad terms and, on its face, there is no reason why the omission of the insured may not be a failure to exercise a right, choice or liberty which the insured enjoys under the contract of insurance … Submissions by the respondent which were contrary to the above construction of s 54(1) and which apparently were based upon the reasoning of the New South Wales Court of Appeal in FAI General Insurance Co v Perry … should be rejected.15
None of the High Court judges in Antico directly addressed the question of whether s 54(1) provided relief in respect of the failure to notify circumstances which gave rise to the claim, as the issue was not before them.
It was not until the case of FAI General Insurance Co Ltd v Australian Hospital Care Pty Ltd16 that the High Court was called upon to determine whether s 54(1) precluded an insurer from refusing to pay a claim on the ground that the insured omitted to give notice of an occurrence (which may have given rise to a claim) within the period of cover.
It was held by the High Court (dismissing the insurer’s appeal) that s 54 can be engaged by an omission by the insured to give notice of an occurrence, even if that omission results from a deliberate choice by the insured. The High Court noted that the reasoning of the majority in Perry was inconsistent with Antico and must therefore be regarded as overruled.
The High Court concluded that the claim which the insured made on the insurer was for indemnity against liability for an occurrence of which the insured first became aware during the period of cover. The effect of the contract, but for s 54, would be that the insurer may have refused to pay the claim by reason of an omission of the insured to notify the insurer of the occurrence which might subsequently give rise to a claim by a third party. The High Court accordingly held that s 54 was therefore engaged to prevent the insurer from refusing to pay the claim.17
The Effect of a Contract of Insurance
After the decision of the High Court in FAI General Insurance Company Ltd v Australian Hospital Care Pty Ltd, some commentators suggested that one way to potentially militate against the very expansive interpretation given to the operation of s 54, as it pertains to notification of circumstances, was to omit from “claims made and notified” policies provisions which were commonly included in such policies which reflected the effect and operation of s 40(3). The reason for this arises from the wording of s 54 itself, which is predicated upon “the effect of a contract of insurance”.
In subsequent proceedings before Chesterman JA in the Supreme Court of Queensland in CA and MEC McInally Nominees Pty Ltd v HTW Valuers (Brisbane) Pty Ltd,18 HTW sought to overcome its failure to provide notice, written or otherwise, of a claim to an insurer while the policy was in force, by a combination of s 40 and s 54. HTW argued that not giving the notice required by s 40(3) was an omission, the effect of which was that the insurer could refuse to pay the policy indemnity. It argued that s 54 had the effect of not entitling the insurer to do so.
In delivering his judgment, his Honour considered the argument to be “novel”, noting that the counsel’s research had not found any case in which an insured had been “brave enough or necessitous enough” to use the sections in combination to this effect. His Honour clearly recognised that the arguments sought to extend the operation of the decision of the High Court in the Australian Hospital Care case. In distinguishing the Australian Hospital Care decision, his Honour noted:
The present case is different, the policy would not have entitled HTW to indemnity had (the underwriter) been given notice of their negligent valuation. Section 40(3) would have obliged [the underwriter] to grant indemnity, but that indemnity would have flowed from the intervention of the statute, not the effect of the policy. In this regard the phrase, “but for the section”, which appears in s 54(1) cannot be overlooked … To assist HTW here s 54 has to be understood as though it read:
“… where the effect of a contract of insurance would, but for this section, and s 40(3) …”19
In concluding that s 40(3) did not imply into policies of insurance a term to the same effect as the subsection, his Honour concluded that HTW’s contention that its policy indemnified it in respect of the valuation by a combination of s 40(3) and s 54(1) was wrong.
The issue of the relationship between s 40 and s 54 was again considered by Bergin J in the decision handed down on 13 June 2002 in Gosford City Council v GIO General Ltd.20
In this case, the plaintiff, Gosford City Council, sought indemnity from the defendant under a policy of insurance which expired on 31 December 1991 and which was not renewed. On 30 May 1991, during the period of the policy, an officer of the plaintiff telephoned the plaintiff’s insurance broker advising of circumstances which might give rise to a potential claim against the plaintiff. The broker did not notify those circumstances to the defendant insurer. The defendant subsequently declined to indemnify the plaintiff with respect to the claim on the basis that the wording in the policy required that a claim be made against the plaintiff during the period of insurance and that no such claim was made against the plaintiff during that period.
In that case the plaintiff submitted that there was a failure (through the broker) to notify facts during the currency of the policy. It was also submitted that by a combination of s 40(3) and s 54, the failure to notify those facts did not entitle the defendant to refuse to indemnify the plaintiff.
The defendant submitted that the failure to notify those facts did entitle the defendant to refuse to indemnify the plaintiff. The defendant submitted that s 40(3) and s 54 did not operate so as to bring the claim within the policy. In particular, it was submitted that, absent special conditions in the policy, s 54 did not apply to instances of a “claims made” policy where no claim had been made upon the insured within the policy period. It was submitted that the notification by the plaintiff to its broker did not advance matters because there was no clause in the policy that deemed a later claim to have been made at an earlier time in which circumstances where notified.
Her Honour noted that the facts in the cases relied upon by the plaintiff were each distinguishable from the facts in the case before her. In Antico, a claim was made during the period of insurance and there was a failure to notify the insurer during that period. Similarly, in East End Real Estate Pty Ltd v CE Heath Casualty & General Insurance,21 a claim was made during the period of insurance and there was a failure to also give notification.
In Newcastle City Council v GIO General Ltd,22 there was a notification during the period, but the claim was made outside the period. In both Australian Hospital Care and Einfeld v HIH Casualty and General Insurance Ltd,23 there were deeming provisions. In the case before Bergin J, there was no deeming provision, there was no claim made during the period, and there was no notification during the period.
Her Honour went on to consider the decision of Chesterman J in McInally Nominees and noted that the dicta in that case was contrary to that expressed by Rolfe J in Einfeld, which her Honour noted was obiter. Bergin J respectfully disagreed with Einfeld, being of the view that the decision appeared to overlook the limitation found in s 54 itself. It operates only where, but for the section, an insurer could refuse indemnity by reason of an omission to give notice.
Bergin J also noted the emphasis in the joint judgment of McHugh, Gummow and Hayne JJ in the Australian Hospital Care case on the point that s 40 and s 54 deal with different problems. Section 40 is concerned with certain contracts of liability insurance and, among other things, with the insured giving notice of a potential claim during the period of insurance cover when the claim is not made until after the expiration of the period. By contrast, s 54 is concerned with the much more general subject of an insurer refusing to pay claims.
In concluding that, as a matter of law, the defendant was not obliged to indemnify the plaintiff under the policy, Her Honour observed that what the plaintiff was seeking to do was to utilise the combination of s 40 and s 54 to imply a deemed claims clause, and then utilise the legislation again to claim that, notwithstanding the implication, the plaintiff omitted to comply with the requirement of the implied term. It would follow that but for that omission, the later claim would have been deemed to have been made within the policy period. Her Honour noted that the plaintiff’s submissions would require modifications to the subsection and provide relief other than that specified in the legislation. There was nothing within the legislation that would justify the statutory implication of a contractual term or a statutory extension of the policy.
The decision of Bergin J went on appeal to the New South Wales Court of Appeal.24 Sheller JA delivered the court’s judgment and dismissed the appeal by the insured.
The Court of Appeal observed that Bergin J had found that the insured did not give written notice of a potential claim before the period of insurance expired, and that the claim that was made upon the insured was made after the expiration of the policy.
The Court of Appeal, whose reasons accorded with those of the trial judge, said:
… the contract of insurance was a claims made policy. No claim was made against the insured within the temporal limits of the period of insurance. The insured’s right to indemnity depended upon the third party’s demand on it being made within the period of cover. The claim that was made on the insured was made outside that period. That fact was decisive unless s 40(3) applied. If the subsection operates it denies the insurer escape from liability because the claim against the insured was not made within the temporal limits. To invoke s 40(3) the insured must have given notice in writing to the insurer of facts that might give rise to a claim against the insured as soon as was reasonably practicable after the insured became aware of those facts but before the insurance cover provided by the contract expired. This was not done. In my opinion, that is the end of the matter. The occasion for s 40(3) to operate did not happen. Accordingly, the subsection does not apply to prevent the insurer contending that the claim is not within the policy.25
In Avant Insurance Ltd v Burnie26, it was held by the New South Wales Court of Appeal that as the policy in question did not create a contractual obligation to give notice of facts that might give rise to a claim, but rather explained the statutory benefits provided to those who did so, the insured’s failure to give notice was not an omission to which S 54 would apply (per McCallam JA and Simpson AJA), and that S 54 does not modify the operation of S 40 and as the contract itself did not have an obligation to give notice, S 54 did not apply (per Emmett AJA).
The clause in the PDS set out the effect of S 40 (3), but the Court did not accept that amounted to a contractual obligation to notify the insurer of facts which might give rise to a claim and accordingly it was not a case in which “but for” s 54 the insurer may refuse to pay the claim, the position being that there was no claim by the insured for the insurer to refuse to pay.
The Court had also noted the insured’s contention that the policy in question was a so called “discovery” policy rather than a “claims made and notified policy”, noting that the High Court in FAI had used that label to describe a policy in which “the critical facts under the contract are the insured’s discovery of the making of a claim on it or its discovery (its ‘becom[ing] aware’) of an occurrence which may give rise to a claim”.
In this case the Court considered that the label “obscures more than it illuminates”. In his separate reasons Emmett AJA held [at 40] that the policy was not a “discovery policy” as that expression was used in FAI v Australian Hospital Products, but rather a “claims made and notified” one, and that was decisive on the question of the operation of S 54.
In Drummond v Gordian Runoff Limited ACN 052 179 64727, in dismissing the Appeal, the New South Wales Court of Appeal held by majority that the primary judge did not err in finding that S 54 was not engaged by the respondents refusal to pay in reliance on a provision of the Home Building Act, as the language of S 54 which in terms speaks of “the effect of a contract of insurance” focuses upon contractual not statutory effects and that the better view is that the words “but for this section” were included in S 54 out of an abundance of caution rather than to signal that S 54 is engaged where an insurer’s refusal to pay is premised upon statute and not upon the terms or effect of the contract of insurance itself.
In Fairbank Haven Pty Ltd v Merkon Constructions Pty Ltd28, in declining leave to amend, Delany J said29:
“Having regard to the more recent decision in Darshn30 and CA & MEC McInally Nominees and the views expressed by the Court of Appeal in Gosford City Council concerning S 40 (3) and 54, the approach adopted some years ago now by Rolfe J in Einfeld is inconsistent with more recent authority. The argument relied upon by Fairbank might appropriately be described as Chesterman J described a similar argument put in CA & MEC McInally Nominees ‘novel’”.
Most recently in Allianz Australia Insurance Limited v United Church in Australia Property Trust (NSW)31, it was said by the Derrington J that to succeed on a point of contention surrounding the operation of a 40(3) and S 54 the insured would have to establish that the decision in Gosford City Council which held that S 54 is unable to cure an insured’s failure to notify for the purposes of S 40(3) is plainly wrong. The Court noted that task was made more difficult since the Court of Appeal’s decision had been followed on several occasions by differently constituted benches of that same court, citing Clark v Avant Insurance Ltd32.
In confirming that there was no basis to displace the “fulcrum of the operation of S 54”, that is “the effect of a contract of insurance” the court noted33 that the insured’s contentions in relation to the operation of S 54 failed for either of two reasons.
The first was that even if it were assumed that it applied to a policy affected by S 40(3), the inherent restriction or limitation in the claims covered is that they be made against the insured in the policy period or arise out of a fact which the insured notified to the insurer in the policy period34.
The second was that S 54 applies only where the policy operates in a way that the insured (sic) may refuse to pay the claim. It has no application where the non-compliance with a statutory provision rather than the policy renders the insured’s claim unmaintainable.
After further consideration of CA & MEC McInally Nominees35, which focussed on the importance of the words “the effect of a contract of insurance” and in noting that the views of Chesterman J were subsequently approved by the New South Wales Court of Appeal in Gosford v GIO36, the court stated37:
“…. the construction of S 54 insofar as it may relate to S 40(3) was carefully articulated in Gosford v GIO and there is no reason to doubt the accuracy of that decision. That being so, it is inappropriate for this Court to depart from it”.
Colvin and McEvoy JJ38 agreed with Derrington J that S 54 does not apply to a failure to notify such that it may be called in aid in some way to give rise to the statutory extension provided for by S 40(3) in those circumstances where the insured has failed to notify as soon as reasonably practicable after becoming aware of facts that might give rise to a claim.
Contribution between Insurers
As was noted by the New South Wales Court of Appeal in Zurich Australian Insurance Limited v CIMIC Group Limited39, the High Court in Australian Hospital Care40, did not express any view on whether an insurer against whom a claim was made could or could not recover contribution from an insurer against who a claim was not made by asserting that the latter insurer would have been liable, if sued, though the operation of S 54.
The Court went on to note41[iii] that the issue was not resolved either in Antico v Heath Fielding Australia Pty Limited42, with the point being made by the majority in that case being said43 to be that “…s 54 does not postulate an antecedent contractual liability to pay the claim”.
In Watkins Syndicate 0457 at Lloyds v Pantaenius Australia Pty Ltd44, it was clear45 that the Full Court of the Federal Court did not regard the High Court’s decision in Australian Hospital Care as precluding a claim for contribution between the insurers. In rejecting the submission of the Lloyd’s syndicate in that case that s 54 was only available for the benefit of the insured, that syndicate, against which a claim had not been made, was nonetheless found liable to contribute to the loss paid by the plaintiff insurer on the basis of the operation of S 54.
In Zurich v CIMIC46, the NSW Court of Appeal while accepting47 that the court was bound to follow what the plurality said in Australian Hospital Care, did not read the statements from that case to the effect that S 54 directs attention to the claim “in fact made” or “actually made” as precluding consideration of the effect of S 54 on the contractual liability of an insurer against whom no claim has been made, but who would have been held liable had a claim been made, in proceedings for contribution brought by another insurer.
It was noted48 that the inherent “restrictions and limitations” referred to by the High Court in Australian Hospital Care, which were said to depend upon the “essential character” of the insurance, had been closely analysed as a concept by Meagher JA in Prepaid v Atradius49, with that analysis having been approved and adopted by the Full Federal Court in Pantaenius50, with that Court additionally focussing upon determining as a matter of substance the essential character of the policy.
This approached arguably reached its apotheosis in Maxwell v Highway Hauliers Pty Ltd51, in which the High Court of Australia held that S 54 (1) applied to the insured’s omission to have their drivers who were involved in accidents giving rise to claims under the policy, to take a requisite test prescribed by the policy of insurance.
The High Court observed that the restriction or limitation that is inherent in a claim is a restriction or limitation which must necessarily be acknowledged in the making of a claim, having regard to the type of insurance contract under which that claim is made.
The High Court noted that under a “claims made and notified” policy, S 54 did not operate to permit indemnity to be sought in relation to a demand which a third party omitted to make on an insured during the period of cover (but made after that period expired).
An example of this was provided in an earlier decision of Greentree v FAI General Insurance Co Ltd52, in which it was said by the High Court in Australian Hospital Care, when considering that decision53:
“Even if the fact that the third party made no demand on the insured within the period of cover were said to be an “omission”, it is, nevertheless, of the first importance to recognise that the claim to which S 54 refers is the claim by the insured on the insurer which was actually made”.
While noting significant differences between the clause in the policy before the Court from that in FAI, the New South Wales Court of Appeal in Zurich v CIMIC54 recognised that the clauses were operating in the context of “discovery” contracts to which the observations of the High Court in Maxwell v Highway Hauliers applied55.
One of those observations was that in the making of a claim under a so called “discovery” contract, there was a necessary acknowledgement that the indemnity can only be sought in relation to an occurrence of which the insured became aware during the period of cover.
The New South Wales Court of Appeal went on to say56:
“In Australian Hospital Care it was the omission to notify the occurence during the period of cover that attracted the operation of S 54. In Antico the High Court said (at 669) that:
‘There is no reason why the omission of the insured may not be the failure to exercise a right, choice or liberty which the insured enjoys under the contract of insurance”.
In the case before the Court in Zurich v CIMIC57 however, unlike the position in Australian Hospital Care, where the policy condition permitted the giving of notice of circumstances of which the insured was aware, which might give rise to a claim (with the omission to give notice of such circumstance attracting the operation of S 54), the clause permitted the insured to give notice of “…any circumstances reasonably expected to give rise to a Claim”, with a requirement that the notice include reasons for anticipating that Claim.
In noting that there was nothing in the definition of “Claim” which encompassed possible claims, the Court found that for the “circumstances clause” [the authors terminology] to be engaged there must be an actual expectation (reasonably held) that the circumstances notified would give rise to a claim, with full particulars provided.
The Court of Appeal held that the findings of the primary judge fell short of a finding that the insured expected that a Claim would be made arising from the relevant circumstances. While finding that a reasonable person in the position of the insured’s executives could have had such an expectation, their failure to form that expectation was not a relevant omission (and was not alleged to be a relevant omission) for the purposes of S 54.
Accordingly in the context of the clause in question, the Court held58 that it was the forming of a reasonable expectation of a claim and not merely becoming aware of circumstances that could give rise to a claim that was the “restriction or limitation” inherent in the claim that could be made, and that an omission to form an expectation that a claim would arise from the relevant circumstances, was not a relevant omission for which relief was available under S 54. The author respectfully observes, that this appears to be a victory for common sense.
A Final Observation
1 A so called “discovery contract”. See FAI General Insurance Co Ltd v Australian Hospital Care Pty Ltd (2001) 204 CLR 641.
2 The insured must receive notice of this right and, if the contract does not provide cover in respect of pre‑contract events, notice of this must also be given (s 40(2)). For an analysis of s 40 and, in particular, its application to “claims made” policies (in contrast to “claims made and notified” policies), see Newcastle City Council v GIO General Insurance Ltd (1994) 8 ANZ Ins Cas 61‑227.
3 East End Real Estate v CE Heath Casualty & General Insurance Ltd (1991) 25 NSWLR 400.
4 Above at 403–405, 407–408, 410.
5 Breville Appliances v Ducrou (1992) 7 ANZ Ins Cas 61 125.
6 Above at 77,629.
7 FAI General Insurance Co Ltd v Perry (1993) 30 NSWLR 89.
8 Above at 93.
9 Drayton v Martin (1996) 9 ANZ Ins Cas 61 322.
10 Above at 76,596.
11 Antico v CE Heath Casualty & General Insurance Ltd (1996) 38 NSWLR 681.
12 Above at 707. The remaining members of the Court of Appeal, Priestley and Powell JJA, did not address this issue.
13 Ibid 11 at 706. Kirby P considered that Gleeson CJ’s reasoning was explicable in terms of legal policy. The application of s 54 to an insured’s failure to notify circumstances strikes at the very notion of “claims made and notified” policies, and the President thought that the balance of the Chief Justice’s judgment had to be read in that context.
14 Antico v CE Heath Fielding Australia Pty Ltd (1997) 188 CLR 652; 146 ALR 385; [1997] HCA 35; BC9703412.
15 Above at CLR 669; ALR 396, in the judgment of Dawson, Toohey, Gaudron and Gummow JJ. See also FAI General Insurance Company Ltd v Australian Hospital Care Pty Ltd (2001) 204 CLR 641.
16 FAI General Insurance Co Ltd v Australian Hospital Care Pty Ltd (2001) 204 CLR 641.
17 It was noted in a subsequent decision of the New South Wales Supreme Court in Gorczynski v W&FT Osmo Pty Ltd (2009) NSWSC 693 (per Simpson J at [82]) that the majority of the High Court drew a distinction between an insurer’s refusal to pay a claim by reason of an omission (in which case s 54(1) operated to override the provisions of the policy entitling it to do so) and an insurer’s refusal to pay a claim because, on examination, it is not a claim for which the policy provided cover (in which case, s 54 has no application).
18 (2001) 188 ALR 439. For a discussion of McNally, see Sutton K, “‘Occurrence notified’ clauses in insurance policies” (2002) 17(2) Australian Insurance Law Bulletin 9.
19 Above at [43].
20 Gosford City Council v GIO General Ltd (2002) 12 ANZ Ins Cas 61-527.
21 East End Real Estate Pty Ltd v CE Heath Casualty & General Insurance (1991) 25 NSWLR 400 at 403–404.
22 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85.
23 Einfeld v HIH Casualty and General Insurance Ltd (1999) 166 ALR 714.
24 Gosford City Council v Gio General Ltd (2003) 56 NSWLR 542.
25 Above at [37].
26 [2021] NSWCA 272
27 [2024] NSWCA 239 at [174]
28 [2024] VSC 32
29 Ibid at 74
30 Darshn v Avant Insurance Ltd (2021) 154 ACSR, in which Moshinsky J rejected the submission that a combination of as 40(3) and 54 could expand the operation of a “claims made policy”
31 [2025] FCAFC 8
32 [2022] NSWCA 175 at [39]
33 At [489]
34 Citing Gosford v GIO at 533 at [36]
35 Ibid 18
36 Ibid 20
37 At [499]
38 At 818
39 [2024] NSWCA 229, at [462]
40 Ibid 15
41 At [464]
42 Ibid 13
43 At [465]
44 (2016) 244 FCR 5
45 As observed by the NSWCA in Zurich v CIMIC at [466]
46 Ibid 37
47 At [476]
48 At [469]
49 [2014] NSWCA 440
50 Ibid 42
51 (2014) 252 CLR 590
52 (1998) 44 NSWLR 706
53 At [41]. The High Court at [39] rejected the reasoning in Greentree but considered the actual decision to be correct.
54 Ibid 37
55 The High Court in that case observed (at 598 [24]):
“… the making of a claim under a “discovery” contract, of the type in issue in FAI itself, necessarily acknowledges that the indemnity sought can only be in relation to an occurrence of which the insured became aware during the period of cover”.
56 At [475]
57 Ibid 37
58 At [492]
59 Ibid 37
60 At [478]
61 Citing Albion Insurance Co Ltd v Government Insurance Office (NSW) [1970] ALR 441
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