British American Tobacco Australia Ltd v Eagle Star Reinsurance Co Ltd [2006] NSWCA 156

New South Wales Court of Appeal

CITATION: British American Tobacco Australia Ltd v Eagle Star Reinsurance Co Ltd [2006] NSWCA 156

HEARING DATE(S): 1 June 2006

JUDGMENT DATE: 23 June 2006

JUDGMENT OF: Giles JA at 1; Hodgson JA at 68; Tobias JA at 78

DECISION: (1) Appeal allowed; (2) Set aside the verdict for the cross-defendant on the third cross-claim and the order that the cross-claimant pay the cross-defendant's costs; (3) Remit the third cross-claim to the District Court for a new trial on the condition that the appellant was to be indemtified as if a separate policy had been issued to it in accordance with General Clause 1; (4) Costs of the third cross-claim to be as ordered by the judge conducting the trial; (5) Respondent to pay the appellant's costs of the appeal.

CATCHWORDS: Insurance - defendant's costs of defending proceedings - whether claimed in statement of claim - whether claim raised in submissions for decision although not in statement of claim - whether failure to give reasons for not deciding claim or why claim failed - whether miscarriage of justice - whether appeal court would decide claim - held raised for decision, inadequate reasons, new trial. D

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; Edwards v Insurance Office of Australia Ltd (1933) 34 SR 88; GLG Australia Pty Ltd v The Nominal Defendant (No 2) [2004] NSWCA 282; CASES CITED: Hadid v Redpath (2001) 31 MLVR 152; Mifsud v Campbell (1991) 21 NSWLR 725; Penrith City Council v Government Insurance Office of New South Wales (1991) 24 NSWLR 564; Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235; Soulemezis v Dudley (Holdings) Ltd (1987) 10 NSWLR 247.