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[2003] NTSC 71
defendant. The plaintiff's claim was dismissed: [16].
4 cited instruments linked from this judgment.
The policy excluded flood damage, but the Insurance Contracts Act could require minimum cover unless the insurer brought itself within the written-notification exception. The judge considered that the flood definition changed in later policies, so the insurer had to show that it provided relevant information at the time of those later policies. The First Choice policy clearly said flood damage was not covered. Evidence of the insurer's established mailing practices persuaded the judge that the policy documents had probably been sent to Marsh before her last renewal. The insurer therefore succeeded in relying on s 35(2), and Marsh's claim was dismissed.
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2,345 words · generated 02/10/2026
Merilyn Kaye Marsh owned and occupied a house at 56 Riverbank Drive, Katherine. In January 1998, flood waters from the nearby Katherine River flowed directly into the premises and damaged the contents. At that time, Marsh held a home contents policy with CGU Insurance Limited, trading as Commercial Union Insurance. The policy did not, on its terms, cover flood damage: [1]–[2].
Marsh sued for her loss and interest under s 57 of the Insurance Contracts Act 1984 (Cth). Her argument relied on s 35. The judgment explains that a home contents policy was a prescribed contract, and flood was a prescribed event under regulations 13 and 14 of the Insurance Contracts Regulations 1985. Subject to s 35(2), s 35(1) therefore had the effect of imposing liability for flood damage: [2]. CGU's answer was that it had no obligation to indemnify because the policy excluded flood.
The dispute focused on whether CGU could establish the exception in s 35(2). CGU accepted that it bore the onus. It did not contend that Marsh actually knew, or that a reasonable person in her circumstances could be expected to know, that she lacked flood cover. Instead, it argued that it had clearly informed her in writing: [7].
Marsh's insurance history stretched back to 1983. Early and later policies expressly excluded flood. The wording defining “flood”, however, changed over time. A November 1992 policy said flood cover was not included and allowed a special application for it. A December 1995 policy stated, “We do not provide cover for damage by flood” and supplied a definition. The August 1996 First Choice policy, which was in force at the time of the 1998 flood, used the same wording: [5], [10].
Marsh said she ordinarily paid the premium, kept the renewal notice and receipt, and did not recall receiving policy documents. Her filing cabinet and its contents were lost in the flood. She said she first became aware after the flood that her contents were not insured against it: [6]. CGU relied on evidence of its practices for sending policy documents with new contracts and renewals, together with evidence that documents and renewal notices were prepared for despatch to insured customers: [8], [15].
Angel J dismissed the claim. The decisive finding was that CGU's longstanding practices made it more probable than not that Marsh received the relevant later policy documents before her final renewal in August 1997: [15]–[16].
The judge treated s 35(2) as requiring CGU to prove written communication, not merely to point to an exclusion that existed somewhere in the policy history. Section 11(10)(c) mattered because it required information under s 35 at or before a variation, to the extent that the information related to provisions varied or proposed to be varied. Although each relevant contract excluded flood, the definition of flood had changed: [4], [10].
That change led Angel J to focus on whether Marsh had been told of the exclusion under the later wordings. He said CGU needed to establish that it clearly informed her at or before the December 1995 Home Insurance policy or the August 1996 First Choice policy that flood damage was not covered: [10]. The earlier policies and the 1986 notice were part of the evidential history, but the judge did not treat them as automatically resolving the issue in the face of later changes.
The judge considered the meaning of “informed” in s 35. He respectfully questioned whether it meant “to make known”, as discussed in authorities concerning s 22(1). In his view, actual knowledge was separately addressed by another limb of s 35(2), so “informed” in this context meant no more than “told”: [12]. On that reading, CGU did not have to prove Marsh personally read or understood a policy that it had sent. Angel J illustrated the point with an insured who, unbeknown to the insurer, could not understand English: a policy in plain English that stated there was no flood cover could still meet the written-notification requirement if it had been sent: [12].
The judge also addressed the document itself. The First Choice policy was 44 pages, and Marsh's counsel argued that it was overloaded with information and that the flood exclusion should have been more prominent. Angel J accepted that a reader had to navigate the document, but found that it clearly told a reader who consulted it that flood damage was not covered. The index included “flood” and directed readers to pages 13, 15 and 36. Page 13 began with the statement, “We do not provide cover for damage by flood”. The contents table also identified the exclusions section, and page 36 listed flood among the matters for which claims would not be paid: [14].
The final question was evidential: had the policies actually been sent? CGU had no direct proof of Marsh receiving a particular document. It relied on its systems and practices. The judge accepted evidence that policy wordings were enclosed with renewal notices when material wording changed, and that from 1996 new policy wordings were attached to domestic insurance renewals. A former Darwin branch manager had seen policy documents and renewal notices being prepared together at Katherine Insurance Services. Other witnesses described the practice as longstanding: [8], [15]. In light of that evidence, the court found it more probable than not that Marsh had received the relevant documents before her last renewal in August 1997: [15].
The judgment describes the statutory framework rather than setting out a broad chronology of the law before and after the decision. The relevant starting point was s 35(1): for a prescribed contract and prescribed event, the Act supplied minimum cover despite a policy term that would otherwise provide less or no cover. The judge identified home contents insurance and flood as falling within the prescribed categories under regulations 13 and 14: [2].
Section 35(2) provided an exception. As quoted at [3], it applied where the insurer proved that, before the contract, it clearly informed the insured in writing of the relevant limit or absence of cover, or where the insured knew or a reasonable person in the circumstances could be expected to have known. In this case CGU relied on written information, not the knowledge alternatives: [7].
Section 11(9) treated agreements to renew, extend or vary most insurance contracts as entering into a contract for the purposes of the Act. Section 11(10)(a) generally deemed earlier provision of certain statutory information sufficient at later renewals, but s 11(10)(c) qualified that approach for specified sections, including s 35, where a variation was involved. It required relevant information at or before the variation, but only to the extent that it concerned the provisions varied or proposed to be varied: [4].
The judgment's application of these provisions is significant. Repeated exclusions did not end the inquiry because the definition of flood had changed. The court required attention to whether the later wording had been communicated at the relevant time: [10]. It then held that a sent policy containing a clear statement of the exclusion could meet s 35(2): [12]–[14]. The decision does not establish that every policy document will always suffice. Its conclusion depended on the wording and presentation of this document, as well as proof that it had been sent.
At [10], Angel J said s 11(10)(c) required information under s 35 at or before a variation, to the extent that it related to the provision being varied. In plain English, where the wording relevant to an exclusion changes, an insurer may need to show that it communicated the relevant information in connection with that change. The judge applied that reasoning because the meaning of “flood” changed between the policies.
At [12], the judge wrote that “informed” in s 35 meant no more than “told”. In practical terms, the court's focus was whether the insurer sent a written communication that plainly stated the exclusion, rather than whether the insured could later confirm having read and understood it. That was the judge's interpretation in this case, expressed while respectfully questioning the reasoning in the authorities discussed through Hams.
At [13], the judge said that proof, on the balance of probabilities, that either of the relevant policy documents had been sent before the August 1997 renewal would be sufficient to show that Marsh had been clearly informed in writing. This passage links the legal test with the factual task: the insurer had to establish despatch at the relevant time, and the court considered whether the evidence supported that inference.
At [14], the court identified the policy features supporting clarity: the index entry for flood, page references, an express statement at the top of page 13, and the bold heading and exclusion list on page 36. In plain English, the judge did not require the exclusion to appear only on the front page. He considered that the policy's signposting and express wording made the exclusion clear to a reader consulting the document.
At [15], the judge accepted the inference arising from longstanding despatch practices. “More probable than not” means the court was satisfied that receipt was the more likely explanation on the evidence. It does not mean there was direct evidence of Marsh personally receiving or reading each policy.
The judgment is most directly relevant to disputes where an insurer relies on s 35(2) to avoid the statutory consequence in s 35(1), and where the parties dispute whether an exclusion was clearly notified in writing. In this case, the prescribed event was flood and the policy excluded flood: [2]–[3].
It is especially relevant where an insurance contract has been renewed or varied and the wording of the relevant exclusion or definition has changed. The court relied on s 11(10)(c) and treated the changing definition of flood as requiring attention to communication of the later wording: [10]. A fact pattern involving unchanged wording may raise a different application of the provision; this judgment does not decide every renewal scenario.
The case also concerns proof of sending where the insured does not remember receiving documents and the insurer lacks direct evidence of delivery. Angel J accepted evidence about systematic practices, including preparing policy documents with renewal notices, as supporting an inference of receipt: [8], [15]. The finding depended on the quality and consistency of the evidence described in the judgment. It is not a general rule that an insurer's assertion of a routine practice will always prove receipt.
Finally, the case is relevant to the clarity of policy wording. The First Choice policy expressly stated that flood damage was not covered and used an index and contents headings that directed readers to the exclusion: [14]. The judgment does not say that any lengthy policy, or any document containing an exclusion somewhere within it, necessarily satisfies s 35(2).
The material provided is the judgment itself and does not identify later decisions applying, distinguishing or rejecting Marsh. It is therefore not possible to state from this source what later courts have done with its reasoning or how it has been treated in subsequent authority.
The judgment itself refers to Hams & Anor v CGU Insurance Limited [2002] NSWSC 273, and reproduces passages from that decision concerning the meaning of “clearly informed” and the effect of the parenthetical wording in s 35(2): [11]. Angel J then expressed a different view about whether “informed” meant “to make known”, stating that in his view it meant “told”: [12]. He did not adopt every aspect of the reasoning reproduced from Hams.
The judgment also discusses Suncorp General Insurance Limited v Cheihk [1999] NSWCA 238 and Lumley General Insurance Limited v Delphin (1990) 6 ANZ Insurance Cases 60-986 through the extract from Hams: [11]. The catchwords record that Angel J doubted those authorities. The text provided does not supply any later judicial treatment of Marsh, so the continuing status or influence of this decision cannot be assessed here.
The judgment's reasoning leaves questions that would require attention in another factual and statutory setting. First, the precise boundary between a policy document that “clearly” tells an insured about an exclusion and one that does not remains sensitive to the wording, layout, signposting and circumstances of provision. Angel J found the First Choice policy clear based on its express wording, index and headings: [14]. The judgment does not supply a general checklist that resolves every policy-format dispute.
Second, the decision addressed an insurer that relied on evidence of longstanding despatch systems and practices. It does not explain how strong or detailed such evidence must be in a case where practices were inconsistent, records were incomplete, or the relevant document was not shown to have been prepared in the ordinary course. Here, the judge relied on evidence from several witnesses and on observation of documents being prepared for despatch: [15].
Third, Angel J's interpretation of “informed” is stated with respect and as his own view: [12]. The extract from Hams discussed different reasoning about what it means to clearly inform an insured. The supplied judgment does not resolve every possible question about actual comprehension, language barriers, accessibility or circumstances that might affect whether a document was truly a written notification.
Fourth, s 11(10)(c) was applied because the definition of flood changed. The judgment does not determine the full range of changes that would trigger renewed notification, or how much change in wording is necessary before information must be given again. The judge's formulation was limited to information relating to the provision or provisions varied: [4], [10].
Finally, the decision does not address later amendments to legislation or regulations, nor does the provided material contain subsequent cases interpreting the same provisions. Any assessment of the current statutory framework or later treatment would require sources beyond this judgment.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Hams & Anor v CGU Insurance Limited (2002) 12 ANZ Insurance Cases
Suncorp General Insurance Limited v Cheihk [1999] NSWCA 238 at para 14, doubted
Lumley General Insurance Limited v Delphin (1990) 6 ANZ Insurance Cases 60-986 at 76,571, doubted
Marsh v CGU Insurance Limited t/as Commercial Union Insurance [2003] NTSC 71
CGU INSURANCE LIMITED t/as COMMERCIAL UNION INSURANCE
[1] The plaintiff owned and occupied a house property at 56 Riverbank Drive Katherine. In January 1998 the contents of the house were damaged by flood waters from the nearby Katherine River flowing directly into the premises. At the time the plaintiff had a home contents insurance policy with the defendant.
[2] The plaintiff sues the defendant for her loss plus interest pursuant to s 57 Insurance Contracts Act 1984. The defendant says it was never obliged to indemnify the plaintiff for the damage caused by the Katherine flood because the insurance policy did not indemnify the plaintiff for flood damage. Accepting that the policy in its terms does not indemnify the plaintiff against flood damage the plaintiff relies on s 35 Insurance Contracts Act 1984. In virtue of Regulations 13 and 14 of the Insurance Contracts Regulations 1985 a home contents insurance contract is a prescribed contract and flood is a prescribed event for the purposes of s 35(1). It follows, subject to s 35(2), that the home contents policy of insurance between the plaintiff and the defendant casts liability upon the defendant to indemnify the plaintiff against damage by flood.
[3] The issue between the parties is whether the defendant insurer can, in the circumstances of the case, invoke s 35(2) successfully to resist the plaintiff's claim. S 35(2) Insurance Contracts Act 1984 provides as follows:
(2) Subsection (1) does not have effect where the insurer proves that, before the contract was entered into, the insurer clearly informed the insured in writing (whether by providing the insured with a document containing the provisions, or the relevant provisions, of the proposed contract or otherwise) or the insured knew, or a reasonable person in the circumstances could be expected to have known:
(a) where the effect of the contract, but for subsection (1), would be that the liability of the insurer in respect of a claim arising upon the happening of the event would be less than the minimum amount - what the extent of the insurer's liability under the contract in respect such a claim would be; or
(b) where the effect of the contract, but for subsection (1), would be that the insurer would be under no liability in respect of such a claim - that the contract would not provide insurance cover in respect of the happening of that event."
[4] Given the history of insurance contracts and renewals between the plaintiff and the defendant during the period from 1983 to the flood in January 1998 it is desirable to set forth certain portions of s 11 of the Act:
(9) Subject to subsection (10), a reference in this Act to the entering into a contract of insurance includes a reference to:
(a) in the case of a contract of life insurance - the making of an agreement by the parties to the contract to extend or vary the contract;
(b) in the case of any other contract of insurance - the making of an agreement by the parties to the contract to renew, extend or vary the contract; or
(c) the reinstatement of any previous contract of insurance.
(a) subject to paragraph (c), where, after the commencement of this Act and at or before the original entering into, or the renewal, extension or reinstatement, of a contract of insurance, the insurer has given information to the insured as required by section 22, 35, 37, 40, 44, 49, 68 or 71A, the requirement by that section to give information to the insured shall be deemed to be satisfied at or before any subsequent renewal, extension or reinstatement of the contract;
(c) sections 35, 37, 44, 49, 68 and 71A require an insurer to give information to the insured at or before a variation of the relevant contract of insurance, but only to the extent that the information relates to the provision or provisions varied or proposed to be varied."
[5] The plaintiff first insured with the defendant's predecessor in July 1983, when, through an insurance agent, one Brodie, she entered into a Homepak II Buildings and/or Contents Policy jointly with her then husband in respect of the then matrimonial home in Katherine. That policy expressly excluded damage caused by flood. The plaintiff separated from her husband in June 1985 and the plaintiff through the insurance agent Brodie had the home contents insurance transferred into the plaintiff's name alone. That contents policy was renewed in the plaintiff's name on 24 August 1985. The plaintiff was not requested to fill in a new proposal in respect of this change of circumstance. On 1 January 1986 the Insurance Contracts Act 1984 commenced. As a consequence the defendant issued new policies in respect of house contents insurance in the form of Exhibit D4 annexure B. This policy also expressly excluded damage caused by flood. In July 1991 the defendant altered its contents policy and once more expressly excluded flood cover. In 1992 the plaintiff's father died and the plaintiff inherited the Riverbank Drive property. The plaintiff requested the insurance agent Brodie to transfer the contents insurance in respect of the property to her. In November 1992 the home insurance policy of the defendant with respect to the riverside property was in the form of Exhibit P6. Once again flood cover was expressly excluded. At p 15 of that policy document appears the following:
"Note: Flood cover is not included in this policy. Special application may be made if you require such cover."
In December 1995 a further contents policy was issued by the defendant being attachment "CW 7" to the witness statement of the witness Craig Wardle being Exhibit P3. At p 13 of the policy document appears the sentence, inter alia -
In August 1996 the defendant issued yet another policy called "First Choice Home Insurance" in respect of the contents of the plaintiff's river side property. That policy, being Exhibit P7, was the policy of insurance in force between the plaintiff and the defendant at the time of the Katherine flood.
[6] It was the plaintiff's evidence that following the initial insurance policy with her husband back in 1983 she simply renewed the contents policy each August through the insurance agent Brodie and thereafter through Katherine Insurance Services Pty Ltd which had acquired Brodie's insurance agency business. It was the plaintiff's evidence that she had no recollection of ever receiving a policy document and that each year having paid her premium and obtaining a receipt she stapled the receipt to the renewal notice and filed it in her filing cabinet at home. Her evidence was that had she received a policy document she would have filed that also but had no recollection of ever doing so. The contents of her filing cabinet were lost in the flood and Mr Brodie was unavailable to give evidence through ill health. The plaintiff said she only first became aware her house contents were not insured against flood after the flood and that she had never clearly been informed in writing that she was not covered for damage by flood.
[7] The defendant accepts that it bears the onus of bringing itself within s 35(2) Insurance Contracts Act 1984. The defendant does not suggest that the plaintiff knew she had no flood cover or that a reasonable person in the circumstances could be expected to have known she had no flood cover. The defendant insurer does say, however, that it "clearly informed" Mrs Marsh in writing that she had no flood cover.
[8] Evidence was led by the defendant that whenever a contract of insurance was initiated with an insured, the insured was sent a copy of the policy document. Evidence was also led to the effect that whenever there was a change of policy conditions, a copy of the altered policy was sent with the next renewal notice. Thus according to the defendant's system in place throughout the relevant period it was more probable than not, the defendant said, that the plaintiff received a copy of the Homepak II Policy (Exhibit D4 annexure C) in July 1983, and when renewing each August, a copy of the Thriftpak Insurance Policy (Exhibit D4 annexure B) issued in December 1985, a copy of the defendant's Home Insurance Policy (Exhibit P5) issued in July 1991, a copy of the defendant's Home Insurance Policy (Exhibit P6) issued in November 1992, a copy of its Home Insurance Policy (annexure CW 7 of Exhibit P3) issued in December 1995 and a copy of the defendant's First Choice Home Insurance Policy (Exhibit P7) issued in August 1996, the latter being the policy in force at the time of the Katherine flood. In addition to the six copy policies said to have been forwarded to the plaintiff each of which was said to have "clearly informed" the plaintiff in writing that she had no flood cover the defendant also relied upon a notice (Exhibit D9) which the defendant sent to all policy holders notifying them of the coming into effect of the Insurance Contracts Act 1984 as from 1 January 1986 and that certain policy conditions would no longer apply. That notice included the following words in bold letters:
"Please note that this policy does not cover flood."
[9] The defendant submitted that in the circumstances although direct proof of the plaintiff having been sent a copy of the policies was lacking, given the introduction of the Insurance Contracts Act 1984 and the defendant's systems in place to inform insured persons of policy conditions and of the effect of the Act upon existing insured's insurance arrangements with the defendant, it is more probable than not that the plaintiff received the policy documents referred to above and that those policy documents "clearly informed" the plaintiff in writing that she had no flood cover. This submission was attractively and concisely put by Mr Ower, counsel for the defendant.
[10] It seems to me, however, that the defendant's submission takes insufficient account of s 11(10)(c) of the Act which requires an insurer to give information under s 35 at or before a variation of the relevant contract of insurance to the extent that the information relates to the provision or provisions varied or proposed to be varied. Whilst the various contracts of insurance between the plaintiff and the defendant all excluded flood cover the meaning of flood changed. In the November 1992 Home Insurance Policy (Exhibit P6) the wording of the policy was as follows:
At p 10 "Flood means inundation following the escape of water from the normal confines of any lake, reservoir, dam, river, creek or navigable canal as the result of a natural phenomenon which has some element of violence, suddenness or largeness about it, but does not mean inundation by water from Fixed Apparatus, Fixed Tanks, Fixed Pipes, or run off or surface water from surrounding areas."
At p 15 "Note: Flood Cover is not included in this policy. Special application may be made if you require such cover."
The December 1995 Home Insurance Policy annexure CW 7 of Exhibit P3 provided at p 13:
"We do not provide cover for damage by flood. Flood is when water from a river, creek, lake, reservoir, dam or navigable canal overflows into normally dry land. Water that escapes from an irrigation canal is not flood."
That same wording appears in the August 1996 First Choice Home Insurance Policy (Exhibit P7). Thus the defendant, in order to bring itself within s35(2) Insurance Contracts Act 1984 needs to establish that it "clearly informed" the plaintiff in writing at or before the new policy effected by the Home Insurance Policy (CW 7 of Exhibit P3) or at or before the August 1996 First Choice Home Insurance Policy, Exhibit P7, that the plaintiff did not thereby have insurance cover for damage by flood. In other words, whatever the situation preceding the Home Insurance Policy of December 1995, was the plaintiff "clearly informed" by the defendant at or before either of the Home Insurance policies of December 1995 or August 1996 that the policy did not provide cover for damage by flood.
[11] In the course of submissions reference was made to the decision of Einstein J in Hams & Anor v CGU Insurance Limited [2002] NSWSC 273; (2002) 12 ANZ Insurance Cases 61-525 and the following passage at paragraphs 236 to 244 (counsel particularly emphasised paragraphs 239 and 240):
"236. The words `clearly informed the insured in writing' and the words in parentheses immediately following them in s 35(2) have apparently not been considered in any reported case.
237. The words "clearly inform the insured in writing" appearing in s 22(1) of the ICA were considered in Suncorp General Insurance Limited v Cheihk [1999] NSWCA 238, where it was held (at paragraph 14):
`The requirements under s22(1) of the [ICA] is for the insurer to `clearly inform' the insured in writing of the nature and effect of the duty of disclosure. The onus of so proving is on the insurer: Lumley General Insurance Limited v Delphin (1990) 6 ANZ Insurance Cases 60-986 at 76,565. I also accept that `inform' means `to make known' see at 76, 571. The general nature and effect of the duty of disclosure must be `clearly' made known to the insured in writing. The adverb `clearly' is a plain English word and its ordinary meaning would convey the need for some precision in the making known of the relevant duty:' per Stein JA, with whom Meagher JA agreed.
238. In Suncorp General Insurance v Cheihk it was held that the supply to the insured of a statement of the duty of disclosure on the reverse side of a certificate of insurance, without appropriate cross-referencing or highlighting, failed to `clearly inform' the insured of his duty of disclosure.
239. In its written submission ASIC contended, and I accept as correct, that it follows that for the purposes of s 22(1) of the ICA, the mere supply to the insured by the insurer of a document containing the relevant provisions may not be sufficient to discharge the insurer's obligations under s 22(1) if, in all the circumstances, the document failed clearly to inform the insured of his or her obligations.
241. The next and critical question is whether the words in parentheses in s 35(2), `whether by providing the insured with a document containing the provisions, or the relevant provisions, of the proposed contract or otherwise', mean that the provision of such a document will in and of itself satisfy the requirement clearly to inform.
242. In my view the words in parentheses in section 35(2) `whether by providing the insured with a document containing the provisions, or the relevant provisions, of the proposed contract or otherwise' are likely in most circumstances to result in the provision of such a document in and of itself satisfying the requirement to clearly inform. There may however be special circumstances in which the complexity of or confusions within the document containing the relevant provisions (which one would expect would usually be the Insurance Policy itself) could be such that the mere provision of the Policy did not establish that the insurer had effectively informed the insured of relevant limitations. This was effectively the substance of the submission put to the court by ASIC.
243. Hence I accept as correct the proposition that the words in parentheses mean that providing a document containing the provisions is one of a number of mechanisms by which an insurer may clearly inform the insured. In each case the content of the document and all of the circumstances of its provision would need to be considered in order to determine if the insurer had effectively informed the insured of the limitation.
244. I certainly do not accept that as a general rule it would be incumbent upon an insurer to provide along with a document containing the provisions, either a text on insurance law or an annotated Policy identifying and explaining either the general principles of insurance law or the principles dealing with the proper approach to the construction of Policy provisions. The fact is that the principles which underpin the law of insurance are often complex in the extreme and it could not be the case, as it seems to me, that a condition precedent to an insurer establishing that it had clearly informed the insured in writing of the relevant limitation, required the insurer to annotate the Policy by reference to principles of insurance law."
[12] With respect, I question whether "informed" in s 35 means "to make known". "To make known" conveys the idea that the recipient knows or learns something. In s 35 actual knowledge of the insured is one alternative to the insurer having "clearly informed the insured in writing". It seems to me, with respect, that "informed" in the context of s 35 means simply no more than "told". Thus, it seems to me, an insurer who sends a policy document which in plain English informs an insured that there is no flood cover would comply with s 35(2) of the Act notwithstanding that unbeknown to the insurer the insured did not understand English.
[13] In the present case I am of the view that if the defendant insurer has established on the balance of probabilities that the plaintiff was sent either the Home Insurance Policy document annexure CW 7 to Exhibit P3 or the First Choice Home Insurance Policy Exhibit P7 in force at the time of the flood at or before the time the plaintiff renewed her insurance in August 1997 that is sufficient to establish that the plaintiff was clearly informed in writing by the defendant that the defendant was under no liability in respect of a claim for damage by flood.
[14] Counsel for the plaintiff submitted that the 44 page Policy document P7 was "in a format not conducive to reading the whole." He submitted it was "overloaded with information" and not "user-friendly". The fact the policy did not cover flood, he submitted, was not, but should have been, "up front". Notwithstanding these complaints I am of the view the policy clearly told anybody who read it that flood damage was not covered by the policy. The document has an index which includes an entry "flood". The reader is referred to pages 13, 15 and 36. At the top of page 13 appear the words: "We do not provide cover for damage by flood". The document has a "Table of Contents" which includes an entry in bold type: "What Section 1 and Section 2 of the policy do NOT cover", referring to page 36. At page 36 below a bold heading "What Section 1 and Section 2 of the policy do NOT cover" appear the words: "We will not pay claims arising from:" followed by a list of matters including flood. In my view the policy document of itself, if sent to the plaintiff, "clearly informed" her that the policy did not provide insurance cover for damage by flood.
[15] There remains the question whether either of the relevant policies was sent to the plaintiff with her annual renewal notices. Given the defendant's system in place and particularly the evidence of the defendant's one time Darwin branch manager Mr Wardle that it was the defendant's practice to enclose policy wordings with renewal notices to insureds whenever a material change was made to a relevant policy wording and that from 1996 he maintained a practice that new policy wordings were attached to all domestic insurance renewals, I am satisfied the defendant has made out its defence. Mr Wardle gave evidence he attended the premises of Katherine Insurance Services where he saw policy documents and renewal notices being prepared for despatch together to insured customers in accordance with the defendant's practice. That practice was of long standing, according to the evidence of the witnesses Mahar, Pile and Nolland. Given that longstanding practice, which accords with both commonsense and commercial reality, it is more probable than not that the plaintiff received the Home Insurance Policy document annexure CW7 to Exhibit P3 and the First Choice Home Insurance Policy Exhibit P7 before her last renewal in August 1997 prior to the flood. The plaintiff's claim therefore fails.
Marsh
CGU Insurance t/as Commercial Union Insurance [2003] NTSC 71
The plaintiff's claim was dismissed: [16].