Fogarty v CGU Insurance Ltd

[2016] ACTCA 62

ACT Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Insurance contracts
3. › Home and contents insurance
4. › Insurer's election to repair
5. › Breach of contract
6. › Whether insurer breached obligation to repair where insured refused to permit proposed method of repair
7. › Insurance Contracts Act 1984 (Cth), s 57
1. Appeal
2. › Appeal from single judge of Supreme Court
3. › Appeal from Magistrates Court
4. › Whether primary judge erred in finding no breach of contract
5. › No error demonstrated
1. Practice and Procedure
2. › Pleadings
3. › New issues on appeal
4. › Whether party may raise on appeal issues not raised at trial or before primary judge

Quick Take

Where an insurer elects to repair insured damage and proposes a method of repair that is not shown to be contrary to its contractual obligations, the insured's refusal to permit the repairs prevents any breach of the insurance contract from arising. The insured has an obligation to exercise best endeavours to permit the insurer to discharge its obligations. A party cannot raise on appeal issues not raised at trial or before the primary judge where to do so would work injustice on the other party.