Ali v Insurance Australia Limited [2022] NSWCA 174

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ali v Insurance Australia Limited [2022] NSWCA 174 Hearing dates: 2 May 2022 Date of orders: 08 September 2022 Decision date: 08 September 2022 Before: Ward P at [1]; Leeming JA at [2]; Mitchelmore JA at [3] Decision: (1) Grant leave to appeal. (2) Order that the applicant file a notice of appeal in accordance with the draft Notice of Appeal within 7 days. (3) Appeal allowed. (4) Answer the separate question, ordered by consent in the District Court on 25 March 2021: "The plaintiff's claim in these proceedings is not barred by s 14 of the Limitation Act 1969 (NSW) as raised in Prayer 4 of the Further Amended Statement of Claim and paragraph 28 of the Defence to the Amended Statement of Claim, or any further or amended pleadings in relation to this question." (5) Set aside the order of the District Court dated 22 September 2021 dismissing the applicant's claim and awarding costs to the respondent, and in lieu thereof order that paragraph 29 of the Defence to the Further Amended Statement of Claim be struck out under rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). (6) Remit the proceedings to the District Court for determination. (7) The respondent pay the appellant's costs of the appeal and the costs below of the determination of the separate question. Catchwords: INSURANCE – property insurance – home and contents – where claim by policyholder made following break-in at home – where drafting in policy used the word "cover" throughout – whether cause of action for damages arose at the time of property damage or upon determination of claim – whether claim against policy barred by Limitation Act 1969 (NSW), s 14 – whether "cover" where used in policy interchangeable with "indemnify" Legislation Cited: Corporations Act 2001 (Cth), ss 760A, 764A, 1011B, 1012B, 1013C, 1013D Corporations Regulation 2001 (Cth), reg 7.9.15E Insurance Contracts Act 1984 (Cth), s 11 Limitation Act 1969 (NSW), s 14 Cases Cited: Australian Casualty Co Ltd v Federico (1986) 160 CLR 513; [1986] HCA 32 Be Financial Pty Ltd v Das [2012] NSWCA 164 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Global Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296 Globe Church Incorporated v Allianz Australia Insurance Limited (2019) 99 NSWLR 470; [2019] NSWCA 27 LCA Marrickville Pty Ltd v Swiss International SE [2022] FCAFC 17; (2022) 401 ALR 204 McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65 Paterson v Pongrass Group Operations Pty Ltd [2011] NSWSC 1588 Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Category: Principal judgment Parties: Mukhtar Ali (Applicant) Insurance Australia Limited (Respondent) Representation: Counsel: Mr T Castle SC / Ms A Elizabeth (Applicant) Ms A Horvath SC / Ms G Keesing (Respondent)