NRMA INSURANCE LTD v COLLIER and ANOR [1996] NSWCA 403

NRMA INSURANCE LTD v COLLIER and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 14 March, 11 June 1996, 6 September 1996

[1996] NSWCA 403

Insurance — alleged arson — meaning of insurance policy — alleged failure of trial judge to give reasons — Notice of Motion to admit fresh evidence

FACTS:

This was an appeal brought by the appellant, an insurer, following a decision of Leslie AJ. The relevant policy of insurance was one against damage to a property, that property being extensively damaged by fire in May 1993. At the time of the fire, the property was subject to a mortgage. Indemnity was denied by the appellant on the suspicion that the respondents had deliberately destroyed their own house.

The trial judge found in favour of the first respondents. The appellant has appealed on the basis that: the trial judge should have upheld the allegations of fraud; that his Honour's findings on quantum were unjustifiable; that his Honour failed to give reasons for judgment; and that his Honour failed to properly deal with the cross-claims.

HELD:

By Meagher JA, Clarke, Sheller JJA agreeing:

1) The facts that: a) the respondents were impecunious and, thus, had a motive for burning the insured property; b) the property was insured for a greater amount than its true value and; c) the respondents had an opportunity to fire the property; do not carry overwhelming weight in insurance litigation.

2) The trial judge's view that the subject insurance policy was an 'agreed value' policy was incorrect. The policy should, instead, have been construed as a 'replacement policy'. As such, his Honour's conclusions on quantum were incorrect.

3) It was open to the trial judge to conclude that one witness is more credible than another without giving extensive reasons for such a conclusion.