In the recent decision of Westpac Life Insurance Services
Limited v Thereze Guirgis,11the Supreme Court of
Victoria, Court of Appeal, refused the applicant insurer's
application for leave to appeal a decision of the County Court
requiring the insurer to indemnify the insured under a 'Westpac
Income Protection Plus' insurance contract.
This decision demonstrates difficulties faced by insurers
seeking to rely on section 29(2) of the Insurance Contracts Act
1984 (the Act) to avoid an insurance contract on
the ground of fraudulent non-disclosure or
misrepresentation.
Background facts
In September 2007, the respondent insured took out a life
insurance policy with the applicant insurer. Relevantly, the policy
provided for payment of a monthly total disability benefit in the
event that the insured suffered a total disability (or a partial
disability benefit, as the case may be) within the meaning of the
policy.
