Citiline Concrete Pumping Pty Ltd v Chubb Insurance Australia Ltd (No 2) [2022] NSWSC 1152

Supreme Court New South Wales

Medium Neutral Citation: Citiline Concrete Pumping Pty Ltd v Chubb Insurance Australia Ltd (No 2) [2022] NSWSC 1152 Hearing dates: 22-24 August 2022 Date of orders: 30 August 2022 Decision date: 30 August 2022 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Insurer entitled to refuse payment of the claim Catchwords: INSURANCE – mobile plant and equipment package insurance policy – claim for damage to truck mounted hydraulic concrete pump – whether insurer entitled to reduce its liability to nil by reason of misrepresentation or non-disclosure – whether insurer entitled to refuse payment of the claim on basis of fraud Legislation Cited: Insurance Contracts Act 1984 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Sgro v Australian Associated Motor Insurers Ltd (2015) 91 NSWLR 325; [2015] NSWCA 262 To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279; [2001] VSCA 48 Category: Principal judgment Parties: Citiline Concrete Pumping Pty Ltd (Plaintiff) Chubb Insurance Australia Ltd (Defendant) Representation: Counsel: N Kirby (Plaintiff) C Purdy (Defendant)

Solicitors: Fortis Law (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2021/10722

JUDGMENT 1. The plaintiff, Citiline Concrete Pumping Pty Ltd ("Citiline"), seeks a declaration of its entitlement to indemnity under a Mobile Plant & Equipment Package Insurance Policy ("the Policy") issued by the defendant, Chubb Insurance Australia Ltd ("Chubb") in respect of damage sustained to a concrete pump fitted on a Volvo truck ("the Unit") on 21 February 2019; together with consequential orders including damages. 2. The Unit is depicted in this photograph: 1. There is no dispute that the Policy responds to Citiline's claim for indemnity. 2. Chubb contends that it is not liable to indemnify Citiline because: 1. it is entitled pursuant to s 28(3) of the Insurance Contracts Act 1984 (Cth) ("the Act") to reduce its liability to nil by reason of Citiline's misrepresentation and non-disclosure relating to the Unit's history ("the Misrepresentation/Non-Disclosure Defence"); and 2. the claim was made fraudulently for the purposes of s 56 of the Act and that it is thereby entitled to refuse payment ("the Fraud Defence"). 1. On 23 August 2022, I made an order pursuant to Uniform Civil Procedure Rules r 28.2 that these issues be determined separately and in advance of any other issues in the proceedings. I ordered that the remaining issues, in particular the quantum of any damages to which Citiline may be entitled, be referred for inquiry and report to a referee pursuant to UCPR r 20.14. Whether that will occur in light of my decision on the issues at [4] remains to be seen.