NRMA Insurance Limited v SMITH [1996] NSWCA 404

NRMA Insurance Limited v SMITH

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA, HANDLEY JA and ABADEE AJA 20 September 1996 [1996] NSWCA 404

Evidence — Credibility — trial judge's assessment of party — rejection of claim of theft under insurance policy by an insured — decision in favour of that party by trial judge not to be lightly displaced on appeal — Devries vy ANI; Baron Akerhielm v Rolf De Mare & Ors

Abadee AJA. The appellant appeals from the judgment of Judge Harry Bell entered in favour of the respondent in the District Court on 3 September 1993.

The respondent's case was that he parked his motor car outside his grandparents" premises where he was residing at about 10pm on the evening of 1 February 1991. Those premises were located at Edgecliff. When he left the vehicle in order to enter the premises he activated the car's alarm system. He said that after entering the premises he did not leave the premises until the next morning.

After leaving his grandparents" home he went outside and observedthat his car was missing. He returned inside and rang the Paddington police station. He reported the stolen car over the "phone. He was told to report the matter in person.

He left the premises and then went to the Edgecliff station and entered a train to travel to Marrickville for the purpose of returning some videos. He went to the Marrickville or Sydenham police station and reported the occurrence of the theft of his car.

On 4 February 1991 he was given a message by his employer that the car had been found. He went to its location at Leichhardt and observed that the vehicle was in a stripped condition. He lodged a claim form with the appellant insurer on 4 February 1991.

The action brought by the respondent involved proceedings under an insurance policy with the appellant. It concerned the theft of his Holden Calais motor car. The contract of insurance was entered into on or about 10 April 1990. Whilst the existence of the policy was not disputed by the appellant at the trial it was claimed by the respondent that the appellant was not entitled to avoid the policy.