MMI General Insurance v Hammond & Anor [2000] NSWSC 828

New South Wales Supreme Court

CITATION : MMI General Insurance v Hammond & Anor [2000] NSWSC 828 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10455/00 HEARING DATE(S) : 15 August 2000 JUDGMENT DATE : 23 August 2000

MMI General Insurance Limited (Plaintiff) PARTIES : Raymond Henry Hammond (1st Defendant) Gay Christina Anne Hammond (2nd Defendant) JUDGMENT OF : Studdert J

LOWER COURT Local Court JURISDICTION : LOWER COURT 219/98 FILE NUMBER(S) : LOWER COURT S. McCosker JUDICIAL OFFICER :

COUNSEL : R.F. Sutherland (Plaintiff) T.J. Morahan (Defendant) SOLICITORS : McMahon & Broadhurst (Plaintiff) Michael Dennis (Defendant) LEGISLATION CITED : Local Courts Act Justices Act Australian Gas Light Co. v The Valuer General [1940] 40 SR 126 CASES CITED : Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Jones v Dunkel (1958-59) 101 CLR 298 Van de Ven v State Insurance General Manager (1990) 6 ANZ Ins. Cases 61-016 DECISION : See para 46

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Wednesday 23 August 2000 10455/00 MMI GENERAL INSURANCE LIMITED v RAYMOND HENRY HAMMOND & ANOR

JUDGMENT

1 HIS HONOUR: By its amended summons, the plaintiff, MMI General Insurance Limited (to which I shall refer for present purposes as "the insurer") appeals to this Court in relation to proceedings that had been brought against it in the Local Court by Raymond Henry Hammond and Gaye Christina Anne Hammond (to which I shall refer for present purposes as "the insured"). The insurer seeks the following orders: "1. An order that the decision of the learned Magistrate that there be a verdict for the Defendants (Plaintiff in the Court below) be set aside. 2. An order that in lieu thereof there be a verdict for the Plaintiff (Defendant in the Court below) and that the Defendants (Plaintiffs in the Court below) pay the Plaintiff's costs as taxed or agreed. 3. An order that the Defendants to the appeal pay the Plaintiff's costs. 4. Such further or other order as the Court sees fit." 2 The insured took proceedings against the insurer in the Local Court at Armidale claiming relief under a policy of insurance issued to them by the insurer in respect of storm damage which the insured claimed to have suffered to commercial premises owned by them at 67 Ollera Street, Guyra. 3 The insurer denied liability under the policy and the critical issue was whether or not damage was occasioned to the roof of the insureds' premises in the hailstorm which the magistrate found affected Guyra on 29 September 1996. That central issue was determined in favour of the insured and the insured recovered judgment against the insurer in the sum of $9497. The quantum involved in the judgment is not under challenge on this appeal but the finding on liability is. 4 Under s 69 of the Local Courts Act an appeal lies to this Court only in respect of error of law. That much is common ground on this appeal. The principles defining what constitutes a question of law were expressed by Jordan CJ in Australian Gas Light Co. v The Valuer General [1940] 40 SR 126 at 137-138. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and in particular the judgment of Mason CJ at 356-357. 5 In the amended Statement of Grounds of Appeal the insurer has identified what it contends to be nine errors of law in the decision reached by the learned magistrate. I propose to deal with these grounds of appeal in the order in which they have been expressed, save for grounds 1 and 4 which I propose to address together and after considering the remainder of the grounds. Accordingly I will deal firstly with Ground 2.