Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In any proceedings by the insured in respect of a contract of insurance that has been avoided on the ground of fraudulent relevant failure, the court may, if it would be harsh and unfair not to do so, but subject to this section, disregard the avoidance and, if it does so, shall allow the insured to recover the whole, or such part as the court thinks just and equitable in the circumstances, of the amount that would have been payable if the contract had not been avoided.
(2) The power conferred by subsection (1) may be exercised only where the court is of the opinion that, in respect of the loss that is the subject of the proceedings before the court, the insurer has not been prejudiced by the relevant failure or, if the insurer has been so prejudiced, the prejudice is minimal or insignificant.
(3) In exercising the power conferred by subsection (1), the court:
(a) shall have regard to the need to deter fraudulent conduct in relation to insurance; and
(b) shall weigh the extent of the culpability of the insured in the fraudulent conduct against the magnitude of the loss that would be suffered by the insured if the avoidance were not disregarded;
but may also have regard to any other relevant matter.
(4) The power conferred by subsection (1) applies only in relation to the loss that is the subject of the proceedings before the court, and any disregard by the court of the avoidance does not otherwise operate to reinstate the contract.