Cutting Edge Services Pty Ltd v Raymond & Therese Penfold; Raymond & Therese Penfold v The Hollard Insurance Company Pty Ltd [2021] NSWSC 1322

Supreme Court New South Wales

Medium Neutral Citation: Cutting Edge Services Pty Ltd v Raymond & Therese Penfold; Raymond & Therese Penfold v The Hollard Insurance Company Pty Ltd [2021] NSWSC 1322 Hearing dates: 2, 3, 4, 5, 6 and 10 August 2021 Date of orders: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Common Law Before: N Adams J Decision: (1) Judgment for the plaintiff against the defendant in the amount of $177,290 plus interest. (2) The cross-claim against the cross-defendant is dismissed. (3) All questions of costs and interest are reserved pending written submissions by the parties. Catchwords: NEGLIGENCE — Breach — destruction of railway sleepers by fire – fire caused by use of arc welder in paddock in summer – where defendant was a farmer and firefighter of 30 years' experience – whether expert evidence required to establish precautions a reasonable person in defendant's position would have taken – held, expert evidence not required – precautions a question of common sense NEGLIGENCE — Damages – where plaintiff claimed much larger number of sleepers were present on the property than it paid for – where value of sleepers dependent on grade – where plaintiff claimed 47% of sleepers were redundant broken/part sleepers – whether quality can be established by reference to sleepers stored at another facility NEGLIGENCE — Defences — Contributory negligence – where defendant told plaintiff to move sleepers to allow for construction of a firebreak – where plaintiff refused – held, plaintiff was contributorily negligent INSURANCE — Insurance Contracts Act 1984 (Cth) – dispute over relevant PDS – whether s 58 of the Act required insurer to prove service of the PDS – where PDS was available on request and defendants' evidence was that they did not know whether a later or earlier PDS applied – construction of exclusion clause – whether property in defendants' physical or legal control – where property stored on defendants' property Legislation Cited: Civil Liability Act 2002 (NSW), ss 5A, 5B, 5C, 5R Civil Procedure Act 2005 (NSW), ss 98, 100 Insurance Contracts Act 1984 (Cth), ss 11, 58 Uncollected Goods Act 1995 (NSW), ss 5, 6 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.34 Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association (1973) 129 CLR 99; [1973] HCA 36 Benson v Rational Entertainment Enterprises Ltd (No 2) [2018] NSWCA 148 Botany Fork & Crane Hire Pty Ltd v New Zealand Insurance Company Limited (1993) 44 FCR 27; [1993] FCA 559 Bunnings Group Ltd v Giudice [2018] NSWCA 144 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 CGU Insurance Limited v Porthouse (2008) 235 CLR 103; [2008] HCA 30 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Commercial Union Insurance Co Ltd v Willetts Radio & TV Limited (1985) 3 ANZ Insurance Cases 60-677 Cutting Edge Services Pty Ltd v Raymond & Therese Penfold [2020] NSWSC 1012 Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640; [2014] HCA 7 Evans v Braddock [2015] NSWSC 249 Gray Brothers Engineering Limited v New Zealand Insurance Company Limited (1992) 7 ANZ Insurance Cases 61-124 Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220; [1971] HCA 26 Indemnity Insurance Co v Excel Cleaning Service (1954) 2 DLR 721 Indigo Mist Pty Limited v Palmer [2012] NSWCA 239 Junemill Ltd (in liq) v FAI General Insurance Co Ltd [1999] 2 Qd R 136 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65 MOS Beverages Pty Ltd v Insurance Australia Ltd trading as CGU Insurance [2020] FCA 1716 Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362; [1963] HCA 4 NH Ins Co v Abellera 6 Wn.App 650, 495 P.2d 668 (1972) Ohlstein v E&T Lloyd trading as Otford Farm Trail Rides [2006] NSWCA 226 Onley v Catlin Syndicate Ltd as the Underwriting Member of Lloyd's Syndicate 2003 [2018] FCAFC 119; (2018) 360 ALR 92 Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Pebsa Pty Ltd v McNaughton Gardiner Insurance Brokers Pty Ltd [2002] WADC 190 Pennington v Norris (1956) 96 CLR 10; [1956] HCA 26 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Port Macquarie-Hastings Council v Diveva Pty Limited [2017] NSWCA 97 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Reid Crowther & Partners Ltd v. Simcoe & Erie General Insurance Co. [1993] 1 S.C.R. 252; 99 D.L.R. (4th) 741 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited (2009) 77 NSWLR 360; [2009] NSWCA 263 Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 Walz Construction Company Pty Ltd v ASP Ship Management [2002] QCA 136 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: D Derrington and R Ashton, The Law of Liability Insurance (3rd ed, 2013 LexisNexis Butterworths) Category: Principal judgment Parties: Cutting Edge Services (Aust) Pty Ltd (Plaintiff) Raymond Mark Penfold (First Defendant/Cross-Claimant) Ruth Therese Penfold (Second Defendant/Cross-Claimant) The Hollard Insurance Company Pty Ltd (Cross-Defendant) Representation: Counsel: Mr G Carolan (Plaintiff) Mr J Drummond with Mr P Boncardo (Defendants/Cross‑Claimants) Ms E Peden SC with Mr P Mann (Cross-Defendant)