NRMA INSURANCE LTD v YASSEEN [1989] NSWCA 248

NRMA INSURANCE LTD v YASSEEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY (1), CLARKE (2) AND MEAGHER (3) JJA 9 August 1989, 18 August 1989 [1989] NSWCA 248

INSURANCE — whether contents policy covered unspecified items of jewellery beyond limited of $1,000 — question of construction. "RENEWAL" OF INSURANCE POLICY — policy for one year — no contractual provision in policy concerning renewal — "renewal" notice sent in respect of policy for following year — "renewal" policy containing significantly different terms from those in prior policy — what right, if any, insured had to rely on terms of first policy when claiming under second policy. ORDERS 1. Appeal upheld. 2. Judgment below set aside; instead judgment to be entered in District Court for $1,000; the plaintiff in the District Court to pay the defendant's costs of the District Court action. 3. Respondent (plaintiff) to pay appellant (defendant's) costs of appeal. 4. Respondent (plaintiff) to have a Suitors Fund Certificate in respect of the appeal.

Priestley JA Mr Yasseen as plaintiff took proceedings against NRMA Insurance Ltd as defendant in the District Court, claiming that moneys were due to him under one of its policies. Nash DCJ found in the plaintiff's favour. The defendant appea- led. In the appeal the factual findings of the trial judge were accepted, with one minor exception. Under the following sub heading I give a shortened version of those findings. Trial Judge's Findings.

At relevant times the plaintiff was the owner of the contents of his home. Included in the contents of his home was a considerable quantity of jewellery. In early August 1983 he went to the defendant's Bankstown office, inter alia, to effect insurance cover on his contents. He completed a proposal form which disclosed he required cover in respect of the jewellery. He was asked to obtain a valuation of it, which he did, at $47,195, and then completed a further proposal. A clerk took the valuation to an office and returned to the plaintiff with a man, whom the plaintiff took to be the manager, who informed the plaintiff that any item worth less than $1,000 would be covered by the policy, but that all items worth more than this sum must be specified in order that it be covered. There were eleven such items in the valuation. These were specified at that time. Attached to the proposal was a contents inventory which set out the values of the various contents of the home, including the sum of $47,195 for jewellery. The full value of the contents was stated in this inventory to be $80,000. When matters were completed, the plaintiff asked for a copy of the valuation. The manager took the original to another room and later returned it to the plaintiff, it having been photocopied for the defendant's records. (The retention of a photocopy was the one matter of fact not accepted by the defendant in its appeal, but on the evidence the judge's inference seems to me to have been justified.) The contract between the parties was contained in the defendant's Homesure Contents Insurance Plain English Policy No HC 2533425, covering the period from 27 October 1983 to 27 October 1984. To this was attached a schedule of valuable items in which the eleven items of jewellery each worth more than $1,000, totalling $20,720, were listed. (All these will be called the "1983 policy"). The