SOGLIMBENE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1990] NSWCA 169

SOGLIMBENE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and HANDLEY JJA 20 March 1990, 27 March 1990 [1990] NSWCA 169

Appeal from District Court — Claim under insurance policy for goods alleged to be stolen — Defence that goods were not stolen and claim made fraudulently — Conflict of evidence between plaintiffs and investigating police officer — Judge accepted police officer as witness of truth — No error in doing so — Satisfaction and heavy onus of proof — No question of principle.

ORDER Appeal dismissed with costs.

Mahoney JA On 7 February 1985 the plaintiffs' home was entered by thieves and goods were stolen. They were insured with the Government Insurance Office of New South Wales.

Accordingly, on 12 February 1985, they submitted a claim to the insurer for items of property which, they claimed, had been stolen.

The Government Insurance Office claims that a large number of those items were not stolen and that the plaintiffs knew this when they made their claim. It therefore avoided the policy and refused payment.

On 23 January 1986 the plaintiffs sued the insurer for the loss claimed. On 26 June 1988, Davidson DCJ found for the insurer. He dismissed the plaintiffs' claim with costs. The plaintiffs have appealed to this Court against his Honour's judgment.

In this appeal nothing has been urged to turn on the terms of the policy or matters of technicality. The appeal has proceeded on the basis that, if the plaintiffs claimed for items of property which they knew were not stolen, the whole of their claim must fail. It is proper to deal with the appeal on that basis. The essential question which therefore is to be determined is whether the plaintiffs knowingly claimed for the items of property which they knew had not been stolen. As his Honour said, those items included five suits, two sports jackets, four pair of trousers, "about ten" shirts and two vests of Mr Soglimbene and a number of evening dresses, a fox fur jacket and a full length mink coat of Mrs Soglimbene.