HAMDAN v NRMA INSURANCE LTD [1997] NSWCA 135

HAMDAN v NRMA INSURANCE LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and STEIN JJA 6 June 1997, 27 August 1997 [1997] NSWCA 135

INSURANCE — FRAUD — CIRCUMSTANTIAL CASE — APPEAL AGAINST FINDING OF FRAUD — APPLICATION TO ADMIT FRESH EVIDENCE

INSURANCE — FRAUD — CIRCUMSTANTIAL CASE — APPEAL AGAINST FINDING OF FRAUD — APPLICATION TO ADMIT FRESH EVIDENCE — On appeal the appellants submitted: (1) the court should receive fresh evidence on appeal; and, (2) the trial judge was not justified in making the finding which she did against the plaintiff, even on the civil standard of proof.

Held: (1) the plaintiff's application to use fresh evidence should be refused as that evidence had been available to the plaintiff at the trial, and in any event was of insufficient weight to justify its use on appeal; and, (2) on the evidence, and on the way the case was conducted before her, the method of reasoning adopted by the trial judge was appropriate and led logically to her conclusion.

Cases:

Briginshaw v Briginshaw (1938) 60 CLR 336.

Priestley JA This is an appeal which at first sight looked as if it might have some prospect of success. The appellant had a Mercedes car in which on 23 March 1991 he drove himself and his wife to go to a wedding at Stanmore. When they came back from the wedding to where they had parked the car it was missing. The car was insured with NRMA Insurance Ltd (NRMA). It was found by police at Botany on 24 March 1991, badly damaged, by far the greater part of the damage being to the exterior of the car. Mr Hamdan made a claim against the NRMA which the NRMA refused to pay. On 3 March 1992 Mr Hamdan commenced proceedings claiming to be entitled to indemnity under the insurance policy.

The reason why I thought at first glance that the appeal might have some chance of success was that the NRMA's resistance to the plaintiff's claim was principally on the ground of fraud, which the NRMA bore the onus of proving and the proof relied entirely on circumstantial evidence which seemed to be rather slender. Allied with this, so far as prospects of appeal were concerned, was the fact that the trial judge in reasons which were almost throughout meticulous, at their end leapt to a series of findings for which she gave very little explanation.