West End Aeronautical plc v QBE Insurance (Aust) Limited [2009] NSWDC 18

New South Wales District Court

CITATION: West End Aeronautical plc v QBE Insurance (Aust) Limited [2009] NSWDC 18

HEARING DATE(S): 2/2/09 - 6/2/09, 11/2/09 - 13/2/09

JUDGMENT DATE: 25 February 2009

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: Verdict and Judgment for the 1st Defendant.

CATCHWORDS: Claim under Policy of Insurance - Damage to Stock and Contents caused by Arson - Defence of Fraud - Burden of Proof - Matters of Circumstantial Evidence which can be taken into account.

LEGISLATION CITED: Insurance Contracts Act 1984 (Cth) Evidence Act 1995

Briginshaw v Briginshaw (1938) 60 CLR 336 Rejfek v McElroy (1965) 112 CLR 517 CASES CITED: Neat Holding Pty Ltd v Karagan Holding Pty Ltd (1992) 110 ALR 449 Helton v Allen (1940) 63 CLR 691 at 714 Jones v Dunkel (1959) 101 CLR 298

TEXTS CITED: Suttons Insurance Law in Australia (3rd Ed) p 1132-33

PARTIES: West End Aeronautical plc (Plaintiff) QBE Insurance (Australia) Limited (Defendant)

FILE NUMBER(S): 335/06

COUNSEL: S A Walsh (Plaintiff) B J M Toomey QC with T A Berberian (Defendant)

JUDGMENT

1 In 1999 Network Welding Pty Limited ("Network Welding") conducted a welding business at 20a/9 Lyn Parade Hoxton Park New South Wales ("the Premises").

2 On 11 May 1999 Network Welding entered into a policy of insurance (the "Policy") with QBE Insurance Limited for the period 11 May 1999 to 11 May 2000. The Policy is exhibit A. The Certificate of Insurance, exhibit B, records that the property insured was contents in the amount of $600,000 and stock in the amount of $100,000.

3 The first defendant, QBE Insurance (Australia) Limited ("QBE" or "defendant") assumed the liability of QBE Insurance Limited under the Policy.