Logic Group Tyres Pty Limited v Tokio Marine & Nichido Fire Insurance Co Limited [2008] FCA 1297

FEDERAL COURT OF AUSTRALIA

Logic Group Tyres Pty Limited v Tokio Marine & Nichido Fire Insurance Co Limited [2008] FCA 1297

INSURANCE – liability – whether misrepresentations and negligence – agency – entry into contracts of storage and insurance – exclusion clauses – whether insurance for storage of tyres in bulk excluded. Held: it was – application dismissed.

LOGIC GROUP TYRES PTY LIMITED (ABN 80 105 995 542) v TOKIO MARINE & NICHIDO FIRE INSURANCE CO LIMITED (ABN 90 000 438 281) and MIRABELL POINT PTY LIMITED (ACN 106 064 545)

NSD 2173 of 2007

TAMBERLIN J

21 AUGUST 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2173 of 2007

BETWEEN: LOGIC GROUP TYRES PTY LIMITED (ABN 80 105 995 542)

Applicant

AND: TOKIO MARINE & NICHIDO FIRE INSURANCE CO LIMITED (ABN 90 000 438 281)

First Respondent

MIRABELL POINT PTY LIMITED (ACN 106 064 545)

Second Respondent

JUDGE: TAMBERLIN J DATE OF ORDER: 21 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2173 of 2007

BETWEEN: LOGIC GROUP TYRES PTY LIMITED (ABN 80 105 995 542)

Applicant

AND: TOKIO MARINE & NICHIDO FIRE INSURANCE CO LIMITED (ABN 90 000 438 281)

First Respondent

MIRABELL POINT PTY LIMITED (ACN 106 064 545)

Second Respondent

JUDGE: TAMBERLIN J

DATE: 21 AUGUST 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, Logic Group Tyres Pty Limited ("Logic") seeks relief against the first respondent, Tokio Marine & Nichido Fire Insurance Co Limited ("Tokio"), as insurer under a contract of insurance formed between Logic and the second respondent, Mirabell Point Pty Limited ("Mirabell"). Mirabell is said to have been agent for Tokio, meaning that Tokio is liable for Mirabell's representations and conduct concerning the supply of insurance cover for goods stored in premises said to be owned by Mirabell. In short, Logic alleges that Mirabell misrepresented the level and quality of security on the premises and the extent of the insurance which would cover the stored goods, and that Mirabell's conduct in allowing those goods to be stolen amounted to negligence. 2 The essence of Logic's case is that, in reliance on Mirabell's alleged misrepresentations, Logic entered into an insurance contract with Tokio in respect of the stored goods. Logic says that, by entering into the contract of insurance and accepting the premiums from time to time, Tokio was responsible for false representations concerning the insurance coverage which it provided. In addition, Logic says that Tokio cannot rely on any exclusion clause contained in the insurance contract to avoid liability in respect of the theft of the stored goods. Logic claims that it is therefore entitled to be indemnified under its insurance arrangements for the theft in the amount of approximately $38,000.