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

Supreme Court New South Wales

Medium Neutral Citation: Admiral International Pty Ltd v Insurance Australia Ltd; Brightcity International Trading Pty Ltd v Admiral International Pty Ltd [2021] NSWSC 1440 Hearing dates: 6–16 September 2021 Date of orders: 8 November 2021 Decision date: 08 November 2021 Jurisdiction: Common Law Before: Fagan J Decision: In Admiral International Pty Ltd v Insurance Australia Ltd trading as CGU Insurance – No 2018/00343393: 1. Verdict and judgment for the defendant on the plaintiff's claims for damages. 2. The statement of claim is in all other respects dismissed. 3. The plaintiff is to pay the defendant's costs of the proceedings. In Brightcity International Trading Pty Ltd v Admiral International Pty Ltd and Insurance Australia Ltd trading as CGU Insurance – No 2019/00191443: 1. Judgment for the plaintiff against the first defendant in the sum of $246,132.90. 2. The first defendant is to pay two thirds of the plaintiff's costs of the proceedings on the statement of claim. 3. Judgment for the plaintiff against the second defendant in the sum of $3,337,854. 4. The second defendant is to pay one third of the plaintiff's costs of the proceedings on the statement of claim. 5. The first cross-claim is dismissed with costs. Catchwords: INSURANCE — claim for indemnity — warehouse fire — theft of goods prior to fire — whether insured knew fire was to be started and consented to it — identification of the insured's active and directing mind — fraud of individuals attributed to insured company — insured disentitled from indemnity INSURANCE – claim by owner of goods – not a party to warehouse operator's policy — construction of policy — interpretation of "interests of other parties" clause — s 48(1) of the Insurance Contracts Act 1984 (Cth) BAILMENT – Bailee — Duties — Breach of obligation to return goods or their value — where bailed goods destroyed by fire — failure to take reasonable care —bailee liable for loss — Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd applied EVIDENCE — Standard of proof — Civil case — where fraud sought to be inferred — circumstantial evidence — Bradshaw v McEwans Pty Ltd applied Legislation Cited: Customs Act 1901 (Cth) Evidence Act 1995 (NSW) Insurance Contracts Act 1984 (Cth) Cases Cited: Beresford v Royal Insurance Co [1938] AC 586 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Entwells Pty Ltd v National and General Insurance Co Ltd [1991] WASC 286; (1991) 5 ACSR 424 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Federation Insurance Ltd v Wasson [1987] HCA 34; (1987) 163 CLR 303 General Accident & Life Assurance Corp Ltd v Midland Bank Ltd [1940] 2 KB 388 Gett v Tabet [2009] NSWCA 76 HL Bolton (Engineering) Co Ltd v TK Graham & Sons Ltd [1957] 1 QB 159 Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 707 Lombard Australia Ltd v NRMA Insurance Ltd (1968) 72 SR (NSW) 45 MMI General Insurance Ltd v Baktoo (2000) 48 NSWLR 605; [2000] NSWCA 70 P Samuel & Co Ltd v Dumas [1925] AC 431 Palmer v Dolman [2005] NSWCA 361 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts Reports 81-292 Texts Cited: Mann's Annotated Insurance Law Kelly & Ball Principles of Insurance Law Category: Principal judgment Parties: 2018/343393 Admiral International Pty Ltd (plaintiff) Insurance Australia Limited t/as CGU Insurance (defendant) 2019/191443 Brightcity International Trading Pty Ltd (plaintiff) Admiral International Pty Ltd (defendant) Representation: Counsel: TM Mehigan SC with P Mann (plaintiff) GM Watson & D Lloyd SC with M Kalyk (defendant) S Gray (Brightcity)