King v Insurance Australia Limited trading as NRMA Insurance [2023] NSWDC 26

District Court New South Wales

Medium Neutral Citation: King v Insurance Australia Limited trading as NRMA Insurance [2023] NSWDC 26 Hearing dates: 24, 25, 26 August 2022, 2 December 2022 Date of orders: 17 February 2023 Decision date: 17 February 2023 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendant. (2) Costs reserved, with liberty to apply. (3) Exhibits retained until further order. Catchwords: INSURANCE - plaintiff makes an insurance claim using the Financial Services Ombudsman (FSO) after his home suffers flood damage - claim adjudicated subject to further expert reports being prepared and served - parties exchange expert reports and defendant makes offers based on those reports - plaintiff commences proceedings in the District Court of New South Wales - whether plaintiff entitled to commence such proceedings after their adjudication by the FSO - whether the FSO should have been joined as a party - whether the FSO had jurisdiction to determine the parties' dispute - alternatively, whether the damage was caused by the insured event - whether house built on shale or clay - expert evidence issues - quantum. Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Corporations Act 2001 (Cth), s 1050 District Court Act 1973 (NSW), ss 4, 46, 134 Evidence Act 1995 (NSW), ss 136, 166(f) Insurance Contracts Act 1984 (Cth), s 57 Uniform Civil Procedure Rules 2005 (NSW), rr 31.24, 31.27, 31.28, 42.35 Cases Cited: Arjunan v Neighbourhood Associates No DP 285853 [2022] NSWSC 691 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 Australia Capital Management Pty Ltd v Australia Financial Complaints Authority [2022] NSWCA 204 Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 Burge v Commonwealth Bank of Australia [2017] FCA 1194 Burge v Commonwealth Bank of Australia (No 3) [2017] FCA 383 Cromwell Property Securities Ltd v Financial Services Ombudsman Ltd [2014] 288 FLR 374 Crowther v Whitehorse City Council (No 2) [2018] VSC 344 Esso Resources Pty Ltd v Southern Pacific Petroleum NL (Receivers and Managers Appointed) & Ors [2005] VSCA 228 Goldie Marketing Pty Ltd v Financial Ombudsman Services Ltd & Anor [2015] VSC 292 McDermott v Black (1940) 63 CLR 161 Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456 Redman v Verticon Group Limited [2009] NSWDC 37 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 49 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Category: Principal judgment Parties: Warren Sydney King (plaintiff) Insurance Australia Limited trading as NRMA Insurance (defendant) Representation: Counsel: Mr J Sleight (plaintiff) Mr A Djurdjevic (defendant)