Our Lawyers’ Noteworthy Cases

Rheem Australia Pty Ltd v Mitsui Sumitomo [2023] FCA 1570

General insurance — Industrial special risks insurance policy — Construction of endorsements – Construction of Machinery Breakdown endorsement

Black Head Bowling Club Ltd v Harrower [2023] NSWCA 267

Appeal to NSW Court of Appeal – Torts – Negligence of Stonemason – Child killed by memorial headstone falling

Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 406 ALR 632

Appeals to the High Court of Australia – General Insurance – Residential Strata Policy – Cyclone Damage – Whether Insurer prevented from relying upon non-disclosure – Estoppel – Election – Waiver – Breach of Utmost Good Faith – Insurance Contracts Act 1984 ss 13, 14, 28

Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277

Appeal to NSW Court of Appeal – Property insurance – Industrial Special Risks policy —Appeal from findings of fact, circumstantial proof, and inferential reasoning – Insured’s knowledge and connivance in arson fraud – Measure of indemnity – Assessment of Damages

Ali v Insurance Australia Ltd [2022] NSWCA 174

Appeal to NSW Court of Appeal – Property Insurance – Home and Contents Policy – Whether claim against policy was barred by Limitation Act 1969 (NSW) – Construction of terms of the policy

Admiral International Pty Ltd v Insurance Australia Ltd; Brightcity International Trading Pty Ltd Admiral International Pty Ltd & anor [2021] NSWSC 1440

Multiple party proceedings – Property Insurance – Industrial Special Risks policy – Insured’s knowledge and connivance in arson fraud – Whether insured disentitled from indemnity – Bailment – Duties of Bailee – Failure to take reasonable care

Ali v Insurance Australia Ltd [2021] NSWDC 369

Property Insurance – Home and Contents policy – Separate Questions – Whether Limitation Act applied to extinguish insured’s right to claim

Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 396 ALR 27

Appeal to Full Court of the Federal Court of Australia – General Insurance – Residential Strata Policy – Cyclone Damage – Whether Insurer prevented from relying upon non-disclosure – Estoppel – Election – Waiver – Breach of Utmost Good Faith – Insurance Contracts Act 1984 ss 13, 14, 28

Allianz Australia Insurance Ltd v Rawson Homes Pty Ltd [2021] NSWCA 224

Appeal to NSW Court of Appeal – Construction Insurance Policy – Where policy insured against damage to construction projects – Hailstorm Damage – Interpretation of insurance policy – Whether one deductible or multiple deductibles applied

Worth v HDI Global Specialty SE (2021) 393 ALR 93

Appeal to NSW Court of Appeal – General Insurance – Home Based Business Property Insurance policy – Where insured’s house destroyed in fire – Whether fire deliberately lit by insured – Whether indemnity on reinstatement basis available – Whether lack of reasonable despatch in rectifying property – Whether consequential losses are available for insurer’s breach of promise to indemnify

Delor Vue Apartments CTS 39788 (2020) 379 ALR 117

General Insurance – Residential Strata Policy – Cyclone Damage – Duty of Disclosure – Whether there as a breach of the duty of disclosure – Whether insurer entitled to rely upon any breach of duty of disclosure – Election – Estoppel – Waiver – Duty of Utmost Good Faith – Insurance Contracts Act 1984 (Cth) ss 13, 21, 28.

Worth v International Insurance Company of Hannover SE [2020] NSWSC 249

General Insurance – Home Based Business Property Insurance policy – Where insured’s house destroyed in fire – Whether fire deliberately lit by insured – Whether indemnity on reinstatement basis available

Oceanview Developments Pty Ltd t/as Darwin River Tavern & Darwin River Supermarket v Allianz Australia Insurance Ltd t/as Territory Insurance Office [2020] FCA 852

General Insurance – Industrial Special Risks policy – Whether property insured limited to property listed in schedule of declared assets – Whether property insured limited to property used in or related to the applicant’s business

Rawson Homes Pty Ltd v Allianz Australia Insurance Ltd [2020] NSWSC 1654

General Insurance – Annual Construction Insurance policy – Where hailstorm caused damage to residential development being constructed by plaintiff — Whether one deductible payable for plaintiff’s claim for cover or whether a deductible is payable in respect of each building works contract – Calculation of Interest under s. 57 of the Insurance Contracts Act 1984 (Cth)

Sunbuild Pty Ltd v Certain Underwriters at Lloyd’s under contract number B1262BW0020715 [2019]

Policy interpretation – Whether a third party claim has been made – Whether insuring clause has been met – Whether mitigation clause is operative

McGinn v NSW Civil & Administrative Tribunal, Supreme Court, NSW, 29 November 2019

Administrative Law – judicial review – jurisdiction of NCAT Appeal Panel to make orders relating to rental bond when bond not lodged with Rental Bond Authority – Residential Tenancies Act ss 175, 187 & 188 – discretion to grant prohibition, certiorari or discretionary relief – summons dismissed.

Global Constructions Australia Pty Ltd (in liq) v AIG Australia Ltd [2018] FCA 98

General Insurance – Crime Protection Insurance – Claim for Direct Financial Loss – Theft or Fraudulent Acts by Shareholder – Whether set-off applies prior to applying limit of liability

Zaps Transport (Aust) Pty Ltd v Richland Express Pty Ltd [2018] NSWSC 1930

Contracts – Customs and Excise – Where plaintiff operated licensed warehouse for dutiable goods – whether defendant had an obligation to insure dutiable goods – Customs Act 1901 (Cth) 1901 s. 35A

Tammekand v AAI Ltd [2018]

General Insurance – Where insured’s home damaged by fire – whether fire was deliberately lit by insured

Ningaloo Escape Pty Ltd v Hollard Insurance Co Pty Ltd (2017) 25 DCLR (NSW) 310

General Insurance – Property Insurance – Property damage to caravan park caused by cyclone – Scope of indemnity – Calculation of Loss

Idik v Calliden Insurance Limited, District Court NSW, 10 August 2012

Insurance – Section 21 Insurance Contracts Act – non-disclosure – ‘on-line’ application – general duty of disclosure limited by insurer’s pre-contract enquiries of insured – Thompson v GIO, Supreme Court NSW, unreported 15 June 1994 (BC9402653) applied – non-disclosure not established – judgment for plaintiff.

AV Jennings Properties Limited v DJ Potter & Associates and DJ Potter District Court NSW, 27 November 2008

Negligence – structural engineer – construction of Australian Standards provisions – application of Standards – conflicting expert opinions on nature and cause of damage to dwelling, correctness of site soil classification and slab and footings designs – no negligence.

Vukmirica v Betyounan [2008] NSWCA 16

Negligence – solicitor – husband and wife borrowed money – solicitor acted on loan and mortgage – part of money “invested” and lost – whether investment without clients’ authority – with authority of husband – whether with authority of wife – whether authority of wife to be implied – whether ostensible authority to be found – trial judge’s factual findings flawed – failure to make findings on some issues and findings in part based on observations of parties in court not made known – new trial ordered.

Vanessa Miles v Buckley, District Court NSW, 5 July 2007

Negligence – injury to child during play when in care of defendant at defendant’s home – degree of supervision required to satisfy realistic standard of care – no negligence

Integral Energy v Allianz Australia Insurance Ltd & Ors [2005] NSWDDT 25

Cross Claims – Insurance – Liability of previous insurers of self insured employer – effect of Orica Ltd v CGU Insurance Ltd and sections 151AAA, 151AB & 151AC Workers Compensation Act, 1987

Seymour v Divome Properties Pty Ltd (2002) NSWSC 68

Conveyancing contract interpretation – jurisdiction of Arbitrator to determine claim by purchaser of home unit against developer/vendor that noise emanating from common wall constituted a defect in finish

Punin v Deputy Commissioner of Taxation [2000] FCA 568

Sales Tax – Fire in business premises allegedly destroying business records – whether sales tax assessable on analysis of purchases

Australian Consolidated Press Holdings Pty Ltd v. Royal Insurance (Global) & Ors (1997) 9 ANZ Insurance Cases 61-351

Policy interpretation – deductible on theft of $5 million gold bullion – whether value of loss determined prior to reduction for deductibles

Sun Alliance Australia Limited v Moulds (1997) NSWCA 96040084

Considerations relevant to application to set aside judgment and extend time to apply for rehearing

Sun Alliance & Royal Insurance Australia Ltd v. Switzerland Insurance Australia Ltd (1996) 9 ANZ Insurance Cases 61-353

Policy interpretation – BOC Gas explosion, Melbourne – asbestos clean up costs – exclusion clause – contribution – applicable interest provision

Barroora Pty Ltd v. Provincial Insurance (Australia) Ltd (1992) 7 ANZ Insurance Cases 61-103

Chargee’s separate rights to enforce policy if insured guilty of arson

Provincial Insurance Australia Pty Ltd v. Consolidated Wood Products Pty Ltd (1991) 6 ANZ Insurance Cases 61-035 and 61-066 (Appeal)

Policy interpretation – exclusion clause – whether stormwater drain a canal or a natural watercourse – Flood of commercial premises

Toikan International Insurance Broking Pty Ltd & Anor v. Plasteel Windows Australia Pty Ltd & Anor (1989) 5 ANZ Insurance Cases 60-903

Policy interpretation – failure to take reasonable precautions – novation of contract

Sklavenites v. Phoenix Prudential Australia Ltd (1986) 4 ANZ Insurance Cases 60-745

Fraudulent claim on contents policy after fire – separate buildings cover – no cover for contents or building

Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234

Limitation Act – interpretation of statutory provisions

Cotton v. Phoenix Assurance Co of Australia Ltd (1983) 2 ANZ Insurance Cases 60-522

Policy interpretation – meaning of “accidental means” – Death during auto-eroticism

Markus v. Provincial Insurance Company Ltd (unreported, Clarke J, NSW Sup Crt 1983)

Privilege – basis for denial of access to non-privileged documents – the “Markus test”

AMP Fire & General Insurance Co Ltd v. Miltenburg (1982) 1 NSWLR 393

Contempt of Court – impeding process server – use of indecent language to process server

Re Barnes; Rule Nisi for Contempt of Court [1968] 1 NSWR 697

Policy interpretation – meaning of “accidental means” – Death during auto-eroticism