Suncorp Metway Insurance Limited v Scarf [2003] NSWCA 185

New South Wales Court of Appeal

CITATION : Suncorp Metway Insurance Limited v Scarf [2003] NSWCA 185 HEARING DATE(S) : 3 July 2003 JUDGMENT DATE : 3 July 2003

JUDGMENT OF : Handley JA at 13; McColl JA at 1; Palmer J at 14 DECISION : Appeal dismissed with costs.

CATCHWORDS : INSURANCE - Motor Vehicle Accident - where term of policy refusing indemnity if, at the time of the event which gave rise to the loss, the motor vehicle was being driven by a person whose faculties were impaired or who was under the influence of alcohol - whether the insurer had established entitlement to refuse indemnity - difficulty of attracting appellate intervention where trial judge comes to a conclusion in favour of party upon whom burden of proof does not lie - where there is competing expert evidence - whether trial judge's conclusions based on credit were inconsistent with, incontrovertibly established facts - whether insured made a fraudulent misrepresentation under s 28(2) Insurance Contracts Act 1984 (Cth) - whether insurer obliged to pay interest in accordance with s 57(2) of the Insurance Contracts Act - ND LEGISLATION CITED : Insurance Contract Act 1984 (Cth) Dearman v Dearman (1908) 7 CLR 549 CASES CITED : Fox v Percy [2003] 197 ALR 201 House v R (1936) 55 CLR 499 PARTIES : Suncorp Metway Insurance Limited (Appellant) Charles Alexander Scarf (Respondent) FILE NUMBER(S) : CA 40059/03 COUNSEL : J Graves SC (Appellant) P McEwen SC (Respondent) SOLICITORS : A R Conolly & Company (Appellant) Greg Walsh & Co (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 332/01 FILE NUMBER(S) : LOWER COURT ADCJ Boyd Boland JUDICIAL OFFICER :