Neil Foster has alerted me to an interesting judgment on change of position in the NSWSC:

Moore v National Mutual Life Association of Australasia Ltd [2011] NSWSC 416
<http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=151846>

A disability insurance policy was set aside for misrepresentation by the insured. Ball J. held that the amounts paid had to be refunded, but that a missed opportunity (in this case, to apply for public benefits or to seek employment) could be a change of position. Even though the judge had concluded that some of the misrepresentations that induced the contract were fraudulent, Ball J. stated that “The fact that Dr Moore was guilty of fraudulent misrepresentation does not make him a wrongdoer in relation to the receipt of the payments. There is no suggestion, for example, that he misled Australian Casualty & Life in relation to the payment of his claim.”

In the result, after a lengthy judgment in which all of the contract/insurance issues were resolved in favour of the insurer, including the rejection of arguments related to waiver and affirmation, the judge allowed the insured a 100% change of position defence on the basis of a relatively brief and fairly rough and ready analysis. The insured, however, was ordered to pay the insurer’s costs.

Lionel

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