Catchwords:

INSURANCE – appeal from decision determining separate questions – where primary judge found insurer not entitled to rely upon s 28(3) of Insurance Contracts Act 1984 (Cth) to reduce liability to nil – where insured notified claim under insurance policy following cyclone damage – where insurer agreed to indemnify despite non-disclosure of prior defects – where insurer took steps consistent with providing indemnity – where insurer subsequently sought to disclaim liability on basis of non-disclosure – whether primary judge erred in finding that insurer estopped from resiling from representation made to insured to indemnify – whether detrimental reliance – whether primary judge erred in finding insurer waived entitlement to assert right under s 28(3) – whether primary judge erred in finding insurer breached duty of utmost good faith – whether decision of primary judge should be upheld on further basis that doctrine of election applies – consideration of circumstances in which doctrine of election applies – whether relief granted by primary judge proper and appropriate – appeal dismissed

PRACTICE AND PROCEDURE – whether decision of primary judge rested on estoppel case not advanced before primary judge – consideration of nature and purpose of concise statement – consideration of distinction between concise statements and pleadings