Commonwealth Consolidated Acts

INSURANCE CONTRACTS ACT 1984 - SECT 21A

             (1)  This section applies to an eligible contract of insurance unless it is entered into by way of renewal.

Position of the insurer

             (2)  The insurer is taken to have waived compliance with the duty of disclosure in relation to the contract unless the insurer complies with either subsection (3) or (4).

             (3)  Before the contract is entered into, the insurer requests the insured to answer one or more specific questions that are relevant to the decision of the insurer whether to accept the risk and, if so, on what terms.

             (4)  Before the contract is entered into, both:

                     (a)  the insurer requests the insured to answer one or more specific questions that are relevant to the decision of the insurer whether to accept the risk and, if so, on what terms; and

                     (b)  the insurer expressly requests the insured to disclose each exceptional circumstance that:

                              (i)  is known to the insured; and

                             (ii)  the insured knows, or a reasonable person in the circumstances could be expected to know, is a matter relevant to the decision of the insurer whether to accept the risk and, if so, on what terms; and

                            (iii)  is not a matter that the insurer could reasonably be expected to make the subject of a question under paragraph (a); and

                            (iv)  is not a matter covered by subsection 21(2).

             (5)  If:

                     (a)  the insurer complies with subsection (3) or (4); and

                     (b)  the insurer asks the insured to disclose to the insurer any other matters that would be covered by the duty of disclosure in relation to the contract;

the insurer is taken to have waived compliance with the duty of disclosure in relation to those matters.

Position of the insured

             (6)  If:

                     (a)  the insurer complies with subsection (3); and

                     (b)  in answer to each question referred to in subsection (3), the insured discloses each matter that:

                              (i)  is known to the insured; and

                             (ii)  a reasonable person in the circumstances could be expected to have disclosed in answer to that question;

the insured is taken to have complied with the duty of disclosure in relation to the contract.

             (7)  If:

                     (a)  the insurer complies with subsection (4); and

                     (b)  in answer to each question referred to in paragraph (4)(a), the insured discloses each matter that:

                              (i)  is known to the insured; and

                             (ii)  a reasonable person in the circumstances could be expected to have disclosed in answer to that question; and

                     (c)  the insured complies with the request referred to in paragraph (4)(b);

the insured is taken to have complied with the duty of disclosure in relation to the contract.

Onus of proof--exceptional circumstance

             (8)  In any proceedings relating to this section, the onus of proving that a matter is an exceptional circumstance covered by subparagraph (4)(b)(iii) lies on the insurer.

Definition

             (9)  In this section:

"eligible contract of insurance" means a contract of insurance that is specified in the regulations.