SIMON v NRMA INSURANCE LTD [1991] NSWCA 247

SIMON v NRMA INSURANCE LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP CLARKE HANDLEY JJA 1 October 1991, 22 October 1991 [1991] NSWCA 247

INSURANCE — motor vehicle insurance — agreed value policy owner alleges theft of vehicle — insurer contends that the claim is fraudulent — judge finds that he is not satisfied on probabilities that owner had proved that motor vehicle stolen but expressly refrains from making any finding of fraud against owner: held finding open on footing that probability that the vehicle was stolen was exactly equal to the probability that it was not (Palamisto General Enterprises SA v Ocean Marine Insurance Co Ltd (1972) 2 QB 625 at 636 and Compania Naviera Vascongada v British and Foreign Marine Insurance Co Ltd (The Gloria) (1936) 54 LL LR 35 at 50-1 applied).

Samuels AP On 19 July 1986 the appellant owned a Toyota Cressida station wagonwhich was insured with the respondent under an "Agreed Value" Policy by which the insurer agreed to pay the sum of $6600-if the vehicle insured was stolen and not recovered. The vehicle was, so the appellant asserted, in good mechanical condition, but was, to a minor extent, affected by rust, and needed painting, which was shortly to be undertaken. It was nine years old, but its generally good condition was authenticated by a Mr R B Simmons who was a mechanic, a friend of the appellant, and acquainted with the vehicle which, in his opinion, in August 1985 at all events, was not unreasonably valued at $6800 or a little in excess of the insured value.

On 19 July 1986 the appellant parked his vehicle in an area near the Roselea Community Hall in Carlingford, where he attended a bush dance. When he left in the early hours of the following morning, he could not find the vehicle. It was discovered on 12 September 1986 in a water hole in Taylors Road, West Pennant Hills some two to three kilometres from the Community Hall and perhaps five to ten minutes' drive away. It was substantially damaged and beyond repair, and other things being equal, the respondent would have paid out the agreed value. However, the appellant's claim was rejected and in answer to the statement of claim which was filed on 2 February 1987 and amended on 26 May 1987, the respondent in its further amended grounds of defence asserted first, that the vehicle was not stolen, as the appellant alleged; secondly, that the assertion that it was was fraudulently made; thirdly, that the appellant had fraudulently, and in breach of the terms of the policy, failed to disclose certain traffic offences, and, finally, that the respondent was entitled to rely upon a term in the policy which excluded liability if at the time "of the happening which results in a claim" the vehicle was being used in an unsafe condition.