New South Wales Supreme Court CITATION : Rodrigues & Anor v NRMA Insurance [2004] NSWSC 98 HEARING DATE(S) : 9 February 2004 JUDGMENT DATE : 27 February 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The Summons is dismissed. The plaintiffs are to pay the costs of the Summons. CATCHWORDS : Appeal - avoidance of contract of insurance - no question of principle. LEGISLATION CITED : Insurance Contracts Act 1984, s 28, s 56. CASES CITED : N/A Mr Alcino & Mrs Celia Rodrigues (Plaintiffs) PARTIES : v NRMA Insurance Limited (Defendant) FILE NUMBER(S) : SC 11882 of 2003 COUNSEL : Mr G Thomas (Plaintiffs) Mr P Mahony (Defendant) SOLICITORS : Konstan Lawyers (Plaintiffs) Abbott Tout (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT 11647 of 2002 Sydney FILE NUMBER(S) : LOWER COURT C Longley, LCM JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Friday 27 February 2004 11882 of 2003 Alcino Rodrigues & Anor v NRMA Insurance Limited JUDGMENT 1 MASTER: The plaintiffs acquired a motor vehicle. Insurance of that motor vehicle was sought from the defendant. In May 2000, Mrs Rodrigues telephoned the defendant for the purposes of having a cover note issued. Although short term cover was arranged, no documentation was sent to the plaintiffs. Some days thereafter, the vehicle was stolen. 2 The plaintiffs made a claim against the insurer for the sum of $22,990 and attended upon the defendant at its Marrickville office on 5 June 2000. The insurer requested payment of the premium. It was paid and the plaintiffs signed documentation. A contract of insurance was issued. It provided for an agreed value of $22,990. 3 Subsequently, the defendant refused indemnity. The plaintiffs then brought proceedings in the Local Court. 4 A contested hearing took place before C Longley LCM. The plaintiffs were unsuccessful. 5 The plaintiffs were seeking recovery of $22,990 under the policy. The defendant was claiming entitlement to avoid the policy under s 28 of the Insurance Contracts Act 1984 (the Act). 6 Judgment was delivered on 1 July 2003. Credibility findings were made in respect of each of the plaintiffs. It was found inter alia that material misrepresentations were made by the plaintiffs. A claim for relief made by the plaintiffs pursuant to s 56 of the Act was also rejected. The learned Magistrate found that the breaches of utmost good faith and duty to disclose were neither minimal nor insignificant. 7 There were two areas of misrepresentation. One concerned the nature of the vehicle. The other concerned the purchase price. 8 Toyota have distributed in Australia a vehicle known as a Hilux. In Japan, a similar vehicle is distributed and is known as a Surf. It was the latter vehicle which was acquired by the plaintiffs. 9 The vehicle details appearing in the "Confirmation of details" section of the documentation were as follows:- "1993 Toyota Hilux 4WD SR5 Ute, 2800CC TURBO DIESEL REGISTRATION AIG64G – VIN/CHASSIS NUMBER 6A91MPORTXHDC9022 – IT WAS PURCHASED FROM A FRANCHISE DEALER FOR $22,990 ON 05/05/2000 – KEPT AT EARLWOOD – USED FOR PRIVATE PURPOSES" 10 The vehicle was not a utility. A relevant issue at the trial was that it had not been disclosed as an imported vehicle. The case for the defendant was that it would not have accepted the risk in the circumstances of this case. Although it was not an issue at trial, it appears that the vehicle was not purchased from a franchise dealer. During the trial, an issue emerged concerning the purchase price. In cross-examination, Mrs Rodrigues told the court that the real purchase price was $20,000. This was the first time it had been suggested that the price was other than $22,990. 11 The plaintiffs now appeal to this Court. It is common ground that unless the plaintiffs are entitled to a grant of leave, the appeal is restricted to error in point of law. 12 The grounds of appeal are set forth in the Summons. It is unnecessary to repeat them in this judgment. On their face, none of them give rise to an error in point of law. 13 In a broad sense, a principal argument advanced on behalf of the plaintiffs was that the learned Magistrate had misapprehended the evidence and was thereby led into error. It was an argument that I was not able to accept. 14 The plaintiffs bear the onus of satisfying the court of an entitlement to relief. I have carefully read the grounds of appeal and written submissions and I have carefully listened to the oral submissions. I am not satisfied that there has been error of law. What is sought to be agitated is either findings of fact or perhaps findings of mixed law and fact. In my view, the findings that were made were reasonably open on the evidence. 15 Further, I take the view that this is not a case in which leave should be granted. Apart from lack of merit, the amount involved in the claim is not large and the matter throws up no questions of principle. 16 The Summons is dismissed. The plaintiffs are to pay the costs of the Summons. ********** Last Modified: 03/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.