Anthony John Gardener v GIO General Limited [2009] NSWDC 20

New South Wales District Court

CITATION: Anthony John Gardener v GIO General Limited [2009] NSWDC 20

HEARING DATE(S): 16/02/2009, 19/02/2009

JUDGMENT DATE: 26 February 2009

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

1. Verdict and judgment for the plaintiff in the sum of $93,174.78, comprising the insured value of the car of $70,000 and interest to the date of judgment in the sum of $23,174.78. 2. The defendant is to pay the plaintiff's costs of the proceedings. DECISION: 3. The exhibits are returned. 4. My reasons are published NOTE: Order 2 in its current form is suspended. The matter is stood over on the issue of costs to 9:30 AM on 05/03/2009

CATCHWORDS: Insurance – Alleged breach of duty of disclosure and misrepresentation on insurance of BMW – Underwriting Guidelines – Whether, if informed the insurer would have offered insurance – Whether insurer discharged onus of proof

PARTIES: Anthony John Gardener (Plaintiff) GIO General Limited (Defendant)

FILE NUMBER(S): 235/07

COUNSEL: Mr. Cummings (Plaintiff) Mr. Sleight (Defendant)

SOLICITORS: Bilbie Dan (Plaintiff) Hicksons (Defendant)

JUDGMENT

1 The plaintiff, Anthony Gardener, believed he had a bargain when he bought a 1997 BMW 740IL automatic sedan for $50,000 in June 2005. It was the model BMW that he particularly wanted, having been impressed by its style and comfort when a passenger in a 7 series model on a prior occasion.

2 The bargain involved was that he purchased a 740IL model that was in mint condition and was specced up to the level of a 750IL model. By this phrase it was meant that the car was fitted with many of the features that were available as standard factory fitted extras that were not available, except at additional cost, for the 740IL model.