RUSSELL v NRMA INSURANCE LTD [1990] NSWCA 159

RUSSELL v NRMA INSURANCE LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS J, CLARKE and MEAGHER JJA 17 May 1990, 1 June 1990

[1990] NSWCA 159

INSURANCE CLAIM — ALLEGATION OF ARSON — SUFFICIENCY OF EVIDENCE

ORDERS 1. Appeal upheld 2. Order below set aside 3. Order that the matter be remitted to the Commercial Division for the assessment of the damages owed by the respondent to the appellant 4. Order that the respondent pay the appellant's costs both of the appeal and before Rogers J; and 5. Order that the respondent have a certificate under the Suitors' Fund Act.

Samuels J I agree with Meagher JA.

Clarke JA I agree with the orders proposed by Meagher JA and, subject to the following observations, the reasons underlying those orders.

Meagher JA has agreed with the trial judge's conclusion that the appellant had a motive for destroying his house or, as Rogers J put it, manufacturing a claim for insurance. The basis of this conclusion was the undeniable lack of liquidity of the appellant. For my part I am not persuaded that motive was established. In saying that I accept fully, as I must, the view that the appellant was suffering a crisis resulting from his lack of liquidity. That factor may well loom high in resolving an issue of motive, particularly if the person involved is unable to realise assets at a reasonable value due to the prevailing financial climate in the community.

But in this case as Rogers J found the appellant's assets exceeded his liabilities. Included within those assets was his house which was, in the light of the then buoyant real estate market, readily saleable at a reasonable price. Why would he destroy his house for $178,000, at best, rather than sell it?

Quite apart from that matter there were a number of other factors which weighed against his Honour's conclusion. Independent evidence established that an estate agent had secured a tenant for part of the downstairs at a rental in excess of $200 per week and there was a prospect of letting another part of the premises. In addition it is possible, I put it no higher in the light of Rogers J's view of the appellant's credibility, that the appellant was in receipt of a recently acquired substantial weekly income.