Khatchadourian v GIO General Limited [2007] NSWDC 179

New South Wales District Court

CITATION: Khatchadourian v GIO General Limited [2007] NSWDC 179 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6, 7, 8 and 10 August 2007

JUDGMENT DATE: 30 August 2007

JURISDICTION: District Court - Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Judgment for the defendant; plaintiff to pay the defendant's costs, to 12 February 07 on the ordinary basis and thereafter on an indemnity basis

CATCHWORDS: Insurance - stolen Porsche - claim for indemnity under a policy of comprehensive motor vehicle insurance - before entering into the contract of insurance, the plaintff fraudulently misrepresented and failed to disclose his true (unacceptable) driving record - insurer entitled to avoid the contract of insurance and refuse payment of the claim - court asked to disregard insurer's right to avoid on the basis it would be harsh and unfair not to do so - no basis established for exercise of discretion in favour of insured

LEGISLATION CITED: Insurance Contracts Act 1984 (Commonwealth): s 21, s 28(1), s 28(2) and s 31

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336

PARTIES: Stephen Khatchadourian (Plaintiff) GIO General Limited (Defendant)

FILE NUMBER(S): 3715/2005

COUNSEL: Mr S Stanton (Plaintiff) Mr S Kettle (Defendant)

SOLICITORS: Arnotts Lawyers (Plaintiff Hickson Lawyers (Defendant)

JUDGMENT

Introduction 1. Mr Khatchadourian's car, a 1998 Porsche 911 Carrera manual coupe (OGT 300), was stolen from the car park at the Macquarie Centre on 25 February 2005. It was never recovered. He made a claim for indemnity for the loss of his Porsche under a policy of comprehensive motor vehicle insurance issued by GIO General Limited (No 13852530PV) for the period 4 May 2004 to 4 May 2005. 2. The claim was refused by GIO General, which says it is entitled to avoid the contract of insurance or to otherwise decline indemnity by reason of fraudulent misrepresentations and fraudulent failures by Mr Khatchadourian to disclose to it relevant matters, before entering into the contract: s 28(2) of the Insurance Contracts Act 1984 (Commonwealth). In particular, it says that Mr Khatchadourian knowingly, or recklessly, and with the intention that it be acted on by GIO General: