Michael Bracken
Principal
On Friday 9 October 2026 the Federal Court held that Hollard Insurance Partners Limited (formerly CommInsure) (Hollard) had breached its duty of utmost good faith to an insured arising from significant delays, poor communication and other defaults in handling a home insurance claim.
Hollard had acquired the CommInsure brand and business from CBA on 30 September 2022.
Significantly, Hollard was ordered to pay a $2 million penalty.
In imposing the penalty, Justice Button emphasised that:
‘It is incumbent on insurers to ensure that their claims handling accords with the duty of utmost good faith. Hollard’s contravening conduct here fell well short of that standard.”
Under current established law, the duty of utmost good faith in s 13 of the Insurance Contracts Act (Act) is implied into every contract of consumer insurance and requires an insurer to act fairly, honestly, and reasonably towards insureds.
This means that, when handling claims, an insurer must not act capriciously or unreasonably nor disregard the interests of the insured. In practice, a failure to comply with this duty this may manifest as undue delay, failure to provide timely decisions on liability, inadequate communication or withholding information, or unreasonable refusal of a claim or to cooperate concerning claim handling.
In the context of the Hollard Case, the breach consisted of the following multiple delays and failures in claim handling and communication (which contraventions were admitted by Hollard):
The chain of contravention, which was admitted by Hollard, occurred over a protracted period of approximately 17 months from 15 November 2021 and 28 April 2023.
Notably:
The Court reinforced earlier judicial decisions [1]that:
In the Court’s view, the prolonged period of the default and the multiple failures to manage the insured’s claim for indemnity under the Policy required a penalty that factored in a message of deterrence.
However, specific deterrence of the defendant (Hollard) was balanced by the Court’s acknowledgement of the remedial steps Hollard had undertaken by subsequent to the breach of duty such as:
Hollard admitted that it failed to comply with the duty implied into the Policy by s 13(1) ICA. Therefore, it contravened s 13(2A) ICA.
The calculation of the civil penalty specified under s 13(2A) ICA, involved the following methodology:
On this basis, Dutton J decided that that penalties must deter future contraventions, both specifically against the defendant (Hollard) and generally across the insurance industry, while being proportionate and non-oppressive and therefore:
“a penalty of $2 million will send a message to insurers that the duty of utmost good faith is real; it is not an empty verbal formula. Rather, it is a substantive, and reciprocal, obligation between insurers and insureds. It is one that attaches to claims handling as much as other matters relating to the contract of insurance.”
Button J emphasised that:
“Hollard was a signatory to the General Insurance Industry Code of Practice (the Code), the relevant paragraphs of which (as applicable during the relevant period) included obligations to correct mistakes promptly, to progress and communicate about claims within defined timeframes, to engage suitably qualified external experts, and to make a decision within four months (or, in defined circumstances, 12 months).”
In our previous Insight on the Draft 2026 General Insurance Code of Practice (Draft Code) we highlighted a new insurer risk emerging from revised Code provisions which will form part of the insurance policy itself and thus a breach of the Code will directly equate to a breach of contract.
Against the background of the Hollard decision, we note that the Draft Code provides:
1. a proposed uplift in protections for consumers including enhanced expectations for trauma-informed claims handling and strengthened requirements for primary points of contact and cash settlements.
2. industry principles which include:
“We will support customers in their time of need by:
Therefore, enforceability of these Draft Code provisions will elevate the associated insurer obligations, from an industry expectation or extra-contractual standard to become a binding contractual obligation.
This means that, in addition to the broader remedies already available under the ICA for breach of the duty of utmost good faith:
In addition to regulatory action by ASIC, failure to satisfy the duty of utmost good faith, might simultaneously constitute a contractual and statutory breach with exposure to damages or civil penalties and potentially heightened exposure to class actions, particularly where systemic breaches are alleged.
This is an apparent risk given ASIC enforcement priorities for 2026 include claims and complaints handling failures by insurers – see here.
The decision reinforces that the duty of utmost good faith in implicit in claims handling and management, and that claims handling non-compliance by an insurer or its agents, could attract both contractual and statutory liability, amplify available remedies, and create heightened litigation risk arising from a coincident escalation of its relevance under the revised Code and statutory standards.
Even though Hollard had engaged an external service provider to provide claims assessment, management and residential repair services, Hollard did not dispute that the acts and omissions of the service provider are to be attributed to it (even so, s 75V ICA attributes liability to the insurer for acts and omissions of an employee, agent, or officer within the insurer’s actual or apparent authority).
It follows that:
The judgment highlights that industry code standards (including timeframes, communication, and prompt correction of mistakes) may inform the assessment of “utmost good faith” in claims handling, increasing regulatory and litigation risk where claims processes are not demonstrably compliant.
Insurers must:
In circumstances involving a body corporate s75D ICA may be applied to substantially escalate a penalty by factoring in an annual turnover formula.
Some risk management and governance steps insurers might consider in response to the evolving legal risks are:
[1] Australian Securities and Investments Commission v Hollard Insurance Partners Limited [2026] FCA 1487 at [139]
[2] Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38 (Delor Vue) at [95]
[3] Delor Vue at [95].
[4] CGU Insurance Ltd v AMP Financial Planning Pty Ltd (2007) 235 CLR 1; [2007] HCA 36 (CGU) at [15]