AUSTIN v NEW SOUTH WALES PERMANENT INSURANCE PTY LTD [1989] NSWCA 8

AUSTIN v NEW SOUTH WALES PERMANENT INSURANCE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and CLARKE JJA 29 May 1989

[1989] NSWCA 8

Practice and Procedure — application for extension of time in which to file appeal — no question of principle.

Samuels JA The claimants had a motor vehicle insured under a policy with the opponent. They traded in that vehicle and acquired another. They wished to transfer the policy to that other vehicle. An employee of their brokers made that request to the opponent. The opponent asked for information, some of which the brokers supplied.

The opponent's representative then said that he would seek the remaining information from the motor dealer which, on one view of the evidence, he did. At that point the evidence in respect of the transaction peters to a halt, save that the policy was tendered by the opponent - I might add over the strenuous objections of counsel for the claimants, whose only hope indeed it was, and that, on one view, provides that on request a policy will be transferred from one vehicle to another. Another view is that it will not be done unless notice in writing is given. Yet a further possible view is that the provision for giving notice is not a condition precedent to the transfer.

A representative of the opponent gave evidence and said, after some extraordinary confusion during his examination in chief: "My company will transfer an existing policy holders policy from one vehicle to another."

McDevitt DCJ who tried the claim by the claimants, who were then defendants to an action which was settled - this proceeding concerns only their claim over against their insurers - dismissed the claim for indemnity upon the ground, it would seem, that the transaction involved a rescission of the existing contract, an offer by the claimants to take out a further policy and no evidence of any acceptance, and hence no contract.