A finding of fraudulent misrepresentation based on reckless indifference requires the court to address whether the representor was consciously indifferent to the truth of the representation, not merely whether their conduct was objectively careless or reckless; and the allegation of conscious indifference must be put to the witness in cross-examination. Under s 28(3) of the Insurance Contracts Act 1984 (Cth), an insurer claiming entitlement to reduce liability to nil must establish on the balance of probabilities that it would not have issued any policy providing any insurance, not merely that it would not have issued the policy 'when it did'. Section 27 of the Insurance Contracts Act 1984 (Cth) only applies where a misrepresentation arises solely from the fact of an incomplete answer, not where the misrepresentation arises from the content of the answer given. The NSWCA considers the Queensland Court of Appeal's approach in Johnson v Triple C to the identification of the insured event under s 54 to be incorrect.
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