Event and Time
Event Description
The case involves a professional indemnity insurance dispute between Absolute Tiling Pty Ltd (the Plaintiff) and its Underwriters regarding a claim related to defects in external sandstone tiling designed and installed by Absolute Tiling for Toga Constructions NSW Pty Limited (the Claimant). The Underwriters denied indemnity under the 2020/21 Policy, stemming from issues of disclosure and exclusion clauses.
Application and Claims
- Plaintiff’s Claim: Absolute Tiling claims indemnity from the Underwriters for rectification works required due to the defective cladding installation. The Plaintiff argues that the denial of indemnity is wrongful.
- Defendants’ Claim: The Underwriters denied coverage based on alleged non-disclosure of prior known circumstances and reliance on exclusion clauses. Additionally, the Brokers (Coverforce and AIB) are accused of negligence and misleading conduct.
Judicial Decisions
Judicial focus centered on: 1. Nature of the Claims: Assessing whether liability arose from design flaws or installation issues. 2. Disclosure Obligations: Evaluating whether Absolute Tiling failed to disclose prior known circumstances. 3. Effect of Exclusion Clauses: Determining the applicability of exclusion provisions in the insurance policy.
Dispute Points and Legal Basis
Dispute Points
- Plaintiff (Absolute Tiling):
- Claims wrongful denial of indemnity under the policy. - Argues that damages claimed by Toga arose from a design issue outside of coverage exclusion.
- Defendant (Underwriters):
- Argues non-disclosure by Absolute Tiling regarding prior known circumstances affects coverage. - Claims reliance on exclusion clauses to deny coverage.