Caine v Lumley General Insurance Limited [2008] NSWCA 4

New South Wales Court of Appeal

CITATION: Caine v Lumley General Insurance Limited [2008] NSWCA 4

HEARING DATE(S): 27 April 2007

JUDGMENT DATE: 6 February 2008

JUDGMENT OF: Mason P at 1; McColl JA at 2; McClellan CJ at CL at 129

DECISION: (a) Appeal allowed in part. (b) Judgment entered in favour of the respondent on 5 May 2006 set aside. (c) In lieu thereof declare that the appellants are entitled to recover the extra costs of reinstatement pursuant to cl D5 of the Policy and interest on that amount pursuant to s 57 of the Insurance Contracts Act (Cth) from 7 February 2003. (d) Summons otherwise dismissed. (e). As to costs: (i) Respondent to pay one-third of the appellants' costs of the appeal and trial, and (ii) Appellants to pay two-thirds of the respondent's cost of the trial and of the appeal, such costs to be set off against each other. (f) Parties to file Short Minutes of Order in the Registry within fourteen days reflecting these reasons.

CATCHWORDS: INSURANCE - construction - commercial business policy for caravan park - caravans permanent or semi-permanent structures to which a tropical roof and annex was attached - damage to caravans, annexes and tropical roofs during storm which included wind, rain and hail - whether reference to "caravans" in exclusion clause included annexes and tropical roofs - whether limits of indemnity under exclusion clause applied to "extra cost of reinstatement" clause - whether limit of indemnity under exclusion clause applied to "additional cover" clause - CAUSATION - proximate cause - whether hail proximate cause of damage - CONTRACTS - release - whether insurer released from liability in respect of costs not in contemplation at time release executed..

Residential Parks Act 1998 LEGISLATION CITED: Insurance Contracts Act 1984 (Cth) Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995