NRMA INSURANCE LIMITED v TOMPSETT [1998] NSWCA 164

NRMA INSURANCE LIMITED v TOMPSETT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA 26 October 1998

[1998] NSWCA 164

SHELLER JA On 28 August 1998 Acting District Court Judge Maxwell, gave judgments in favour of the plaintiff, Nicholas Steven Tompsett, in proceedings brought by him against NRMA Insurance Ltd for damages for alleged breaches of two insurance policies issued by it in relation to the plaintiffs premises at 8 Kyong Avenue, Bluff Point.

The defendant's principal defence to the claim was based upon allegations of arson fraud which failed. The amount of the judgment was $108,000. The defendant has filed a notice of appeal without appointment and now applies by notice of motion that execution of the judgment be stayed pending the hearing of the appeal. That application was supported by the affidavit of Vicki Lynne Crawshaw of 14 October 1998. The claimants also relied upon an affidavit of 23 October 1998, filed by the defendant/opponent. In that affidavit, Mr Tompsett deposed to the fact that he sold the land at 8 Kyong Avenue for $150,000 of which, on settlement, he paid some $107,000 to the ANZ Bank Ltd to discharge his home loan and overdraft. He says that during the term of that loan, he made payments in accordance with its terms from his police service pension. At present his assets consist of $21,000 remaining from the sale. He says that he has recently received an assessment from the Australian Taxation office for approximately $15,000 which he will pay shortly. He has no other liabilities. He lives at the house of a friend. He is in receipt of a police service pension of $1,100 gross per fortnight. He says that he proposes to use part of the judgment sum to finance the commencement of a fly fishing tackle retail business.

Mr Duncan appeared for the claimant on this application and Mr Sleight for the opponent. Both have laid some emphasis upon the chances of success of this appeal. Mr Duncan submits that the trial was handled in a rather unusual fashion in the sense that a number of documents were tendered on behalf of the plaintiff and admitted as truth of their contents which should not have been so admitted and that his Honour entertained what was described as a no case to answer claim by the plaintiff at the close of the defendants case.