NSW Caselaw
Reported Decision : (2005) 13 ANZ Insurance Cases 61-639
New South Wales Court of Appeal
CITATION : HAMMOUD BROTHERS P/L v INSURANCE AUSTRALIA LTD [2004] NSWCA 366 HEARING DATE(S) : 05/10/2004 JUDGMENT DATE : 5 November 2004
JUDGMENT OF : Ipp JA; Tobias JA; Bryson JA DECISION : Appeal dismissed with costs [37]
CATCHWORDS : INSURANCE - Motor Vehicle Comprehensive Insurance - appellant claimed loss of vehicle by theft - "If your vehicle is stolen and not found, we will pay you the agreed value." DCJ found "not satisfied ... that the plaintiff company was not, by one, or both of its directors, compliant in the plan to have the vehicle stolen" - consideration whether any special requirement under Briginshaw where plaintiff alleges a negative, declining to find the negative implies that the plaintiff was involved in a crime - held, there is not. Findings of District Court were not set aside. Briginshaw v. Briginshaw (1938) 60 CLR 336 Compania Naviera Vascongada v. British & Foreign Marine Insurance Co Ltd (The Gloria) (1936) 54 LlL Rep 35 CASES CITED : Palamisto General Enterprises SA v. Ocean Marine Insurance Co. Ltd [1972] 2 QB 625 Rejfek v. McElroy (1965) 112 CLR 517 Simon v. NRMA Insurance Ltd (NSWCA, 22 October 1991, unrep.) PARTIES : HAMMOUD BROTHERS PTY LIMITED - APPELLANT NRMA INSURANCE LIMITED - RESPONDENT FILE NUMBER(S) : CA 41219 OF 2002 COUNSEL : G. Reynolds SC & RJM Foord - Appellant R.W. Seton SC & N. Avenell - Respondent SOLICITORS : R.F. Bergagnin & Co. - Appellant Abbott Tout - Respondent
LOWER COURT District Court JURISDICTION : LOWER COURT DC 9115 OF 2001 FILE NUMBER(S) : LOWER COURT FREEMAN J JUDICIAL OFFICER :
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