Section 54 of the Insurance Contracts Act 1984 (Cth) is irrelevant to the determination of an application for leave to proceed against an insurer under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The two provisions are directed to different questions: s 6(4) to whether leave should be granted, and s 54 to a question that may arise at trial concerning the extent of prejudice. Where the insurer is entitled under the contract to disclaim liability due to the insured's breach of notification and cooperation conditions, the proviso to s 6(4) requires refusal of leave.
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