CIGNA INSURANCE AUSTRALIA LTD v GENERAL NEWSPAPERS PTY LTD [1992] NSWCA 41

CIGNA INSURANCE AUSTRALIA LTD vy GENERAL NEWSPAPERS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and MEAGHER JJA 17 June 1992, 18 June 1992

[1992] NSWCA 41

INSURANCE — meaning of policy — fire claim — indemnity admitted — basis of indemnity disputed — destruction of photographic transparencies used by publishers — whether fell within "other property" in insurance policy — whether fell within "other records of every description" — held: (allowing cross-appeal and reversing Palmer A-J on the answer to the separated question) (per Clarke JA; Kirby P and Meagher JA concurring): (1) The loss did not fall within the "other records" provision of the policy in the context; (2) Accordingly, it fell within the "other property" provision; (3) Therefore, proceedings returned to Commercial Division to conclude the hearing upon the basis so determined. Codelfa Constructions Pty Ltd v State Rail of New South Wales (1981) 149 CLR 337 applied.

WORDS and PHRASES — "records".

Kirby P I agree with Clarke JA.

Clarke JA The first three respondents (whom I shall call "the respondents") carried on a publishing business in partnership. One of their activities was the publication under the name 'Federal Publishing Company' of 'special interest' periodical magazines.

On 26 June 1988 the northern wing of the building in which Federal Publishing Company carried on its business was destroyed by fire and the contents of the premises were either totally destroyed or badly damaged by smoke and water. On 18 August 1989 the respondents submitted a claim to their insurers, the appellants, in which they sought compensation for, inter alia, 'the loss of a film transparency library comprising a total of 237,927 film transparencies which had been used for the purpose of producing magazines published by Federal Publishing Company.'