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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Allianz Australia Insurance Limited v Rawson Homes Pty Ltd [2021] NSWCA 224 Hearing dates: 29 June 2021 Date of orders: 20 September 2021 Decision date: 20 September 2021 Before: Meagher JA at [1] Leeming JA at [9] White JA at [15] Decision: (1) Appeal allowed. (2) Set aside the orders of the primary judge of 20 November 2020. (3) In lieu thereof order that there be judgment for the respondent in the sum of $266,671, together with interest pursuant to s 57 of the Insurance Contracts Act 1984 (Cth) from 29 March 2018. (4) The respondent pay the appellant's costs of the appeal. (5) Within 14 days the respondent file and serve written submissions (of no more than 7 pages) as to the orders that should be made as to the costs of the proceedings below in accordance with these reasons. (6) Within 7 days thereafter, the appellant file and serve written submissions (of no more than 7 pages) as to the orders that should be made as to the costs of the proceedings below. (7) Any submissions in reply (of no more than 5 pages) be filed and served within 7 days thereafter. (8) Reserve the question of costs of the proceedings below. Catchwords: CONTRACTS — Construction — Construction of insurance contract — Where policy insured against damage to construction projects — Where houses under construction damaged in hailstorm — Where policy provided for application of "deductible" — Whether "deductible" to be applied in respect of each house under construction, or whether to be applied only once to the total sum to be paid for damage caused by the hailstorm Legislation Cited: Insurance Contracts Act 1984 (Cth) Cases Cited: FAI Insurance Ltd v Aust Hospital Care Pty Ltd (2001) 204 CLR 641; [2001] HCA 38 Lake v Simmons [1927] AC 487 Malamit Pty Ltd v WFI Insurance Ltd [2017] NSWCA 162 Rawson Homes Pty Ltd v Allianz Australia Insurance Limited [2020] NSWSC 1654 Selected Seeds Pty Ltd v QBEMM Pty Ltd (2010) 242 CLR 336; [2010] HCA 37 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 Texts Cited: FD Rose, Marine Insurance: Law and Practice (LLP, 2004) WIB Enright and RM Merkin, Sutton on Insurance Law (Lawbook Co, 4th ed, 2015) Category: Principal judgment Parties: Allianz Australia Insurance Limited (Appellant) Rawson Homes Pty Ltd (Respondent) Representation: Counsel: T M Faulkner SC with C P O'Neill (Appellant) M R Elliott SC with P Mann (Respondent)