Insurance, Property Damage

Insurer’s faultless claims conduct ends in successful defence of claim

9 January, 2020

McCabes acted on behalf of Allianz in successfully defending the proceedings brought by the Insured for alleged breach of contract and alleged damages of almost $1.6 million. Allianz had elected to undertake repair of damage caused by the insured event. It argued, and the Court held, that the insured had failed to permit those repairs to be completed which thereby caused further loss, including causing mould to grow within the property. A dispute as to the appropriate scope of works and resultant damage caused by the insured event ensued. In finding for Allianz, the Court held that Allianz’s conduct “could not be faulted”.

Authors: Benjamin Karalus and Kristy Craig-Smith
Judgment date: 20 December 2019
Citation: Briese v Allianz Australia Insurance Pty Ltd [2019] VCC 2170
Jurisdiction: Victorian County Court


  • An insured’s failure to cooperate in permitting the insurer to complete repairs pursuant to the policy constitutes a breach of the policy of insurance on the part of the insured.
  • Where an insurer elects to reinstate the property in accordance with the policy, the insured is required to cooperate in the performance of those works
  • If an insured fails to permit repair works to be completed, the insurer will not be liable for subsequent resulting damage caused to the property, including that caused by mould growth.


The Plaintiff (Briese) discovered a burst hot water pipe in the subfloor of her home on 27 May 2014 (the insured event). Briese lodged a claim pursuant to her policy of insurance with the Defendant (Allianz). Allianz accepted the claim and made an election under the policy to repair the damage caused as a result of the insured event. In electing to repair the damage, Allianz appointed loss adjusters and numerous experts and building consultants to assess the damage, provide a scope of works and quotations for rectification of that damage.

Allianz had any and all mould arising from the insured incident remediated and appointed builders to carry out repairs to the property (largely confined to replacement of a large section of parquetry flooring) thereafter in accordance with the scope of works. Repairs commenced in February 2015 but ceased in June 2015 after Briese raised concerns regarding the scope and alleged quality of works being performed. Briese ultimately refused the builder ongoing access by changing the locks to the premises. She would go on to allege that the property had been severely affected by mould, alleging this was caused by the insured event and/or Allianz’s failure to complete the works.

Allianz in fact went to extraordinary lengths to attempt to address the issues raised by Briese, appointing a number of experts including structural engineers, hygienists, quantity surveyors and building assessors to inspect and report on the property and the costs of repairs. These experts confirmed that the original scope of works was the correct scope to rectify the insured damage.

Briese alleged that Allianz breached the contract of insurance in failing and/or refusing to fulfil the repair obligation arguing that she was justified in stopping the works being undertaken. Further she claimed that she was justified in retaining the services of her own builder, Longbow Group, to repair the home in an attempt to ‘mitigate her loss’. Briese obtained a quote from Longbow Group in the sum of $1,574,634.60 which was the amount that Briese ultimately paid Longbow Group and sought from Allianz by way of damages. This was some $1.45 million more than the Allianz costing of the repairable damage caused by the insured event.

Allianz denied that it breached the policy or that it had any remaining obligation to Briese as a result of the burst event. Allianz maintained that it was seeking to repair the damage to the house as a result of the insured event but that its endeavours to do so were frustrated by the conduct of Briese. Allianz further alleged that the actions of Briese contributed to the extent of the damage sustained to the property and that such losses were therefore her responsibility and did not constitute losses arising as a result of a breach of contract by Allianz.


His Honour Judge Murphy dismissed the plaintiff’s case and found entirely in favour of Allianz on all issues in dispute.

His Honour commented that the actions of Allianz “could not be faulted” and that it was Allianz who was ready willing and able to complete the works to the property caused by the insured event. His Honour found that ‘in circumstances where both parties had not elected to terminate the contract, it was the plaintiff who had by her conduct evidenced a refusal to permit [Allianz] to discharge its contractual performance, namely repair the damage, and therefore it was the plaintiff who breached the contract’.

Allianz’s experts gave evidence that a substantial amount of the observed damage to the premises of Briese was unrelated to the insured event in that it was either the result of structural defects, was pre-existing damage, was the result of other causes of water ingress likely due to failed maintenance and/or was caused or contributed to by the plaintiff’s delays. In relation to the dispute as to the appropriate scope of works and extent of the insured damage, in particular the mould damage, his Honour accepted and preferred the expert evidence provided by Allianz’s experts and found that the original scope of works identified by Allianz was the correct scope to rectify the damage caused by the insured event.

His Honour also found that Allianz had taken all reasonable steps to remediate the mould caused as a direct result of the insured event by the time of repairs and June 2015 (being the time at which time Briese refused Allianz’s contractors any further ongoing access to the premises) and held that the her conduct in leaving the property locked and unoccupied coupled with her failure to address the issues of ongoing moisture and ventilation ultimately resulted in further damage occurring as a result of mould developing in the property. In making this finding, his Honour commented that ‘what emerged from evidence and as a matter of common experience, mould is ubiquitous and all property owners have a present continuous duty to take precautions to avoid its development. Those obligations remained on the plaintiff at all times and explain why mould was an excluded condition under the policy.’

In addressing the pleadings and expert evidence put by both parties, His Honour commented that ‘the defence by Allianz was comprehensive and confronted the plaintiff with what it asserted were the consequences of her actions. The defendant did not focus solely on challenging the plaintiff’s actions as being unreasonable. Rather effectively the defendant alleged that the plaintiff was the contract breaker by preventing its performance of its duties under the contract.’

Why this case is important

This case saw the claims handling process of the insurer vindicated. The insurer engaged appropriate experts at various stages of the claim and went to extraordinary lengths to address each issue raised by it’s insured. Appropriate mould remediation works were initially undertaken by the insurer, verified by expert evidence given and accepted at trial. The Court held that the insurer was entitled to rely on its correct original approach.

The case points to the significance of a breach of the duty to cooperate and that Courts are willing to find that an insured’s breach of the duty to cooperate relieves the insurer of its obligations under the policy where the insurer has elected to repair but has been frustrated in its attempts to repair.

The decision also affirms the position that the onus is on the plaintiff insured to prove that they have suffered damage and that it is only in the event that the insurer is found to have breached the contract of insurance that the plaintiff is entitled to such damages.

This case serves as a reminder for insurers of the importance of obtaining well formulated expert evidence when assessing a claim of this nature and as a reminder for insureds of their obligation under the policy to cooperate with the insurer as well as the obligation to act in good faith pursuant to the Insurance Contracts Act 1984.

For queries about the case or matters of a similar nature involving claims disputes or mould remediation issues, contact Benjamin Karalus or Kristy Craig-Smith of our Melbourne office.

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After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." 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