Insurance Australia Limited t/as NRMA Insurance v John Checchia [2011] NSWCA 101

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Insurance Australia Limited t/as NRMA Insurance v John Checchia [2011] NSWCA 101 Hearing dates: 13 and 14 October 2010 Decision date: 28 April 2011 Before: Beazley JA at [1]; McColl JA at [200]; Handley AJA at [201] Decision: 1. Appeal allowed; 2. Set aside the orders of the trial judge made 29 September 2009; 3. Order that there be a new trial on all issues; 4. Order that the respondent pay the appellant's costs of the appeal; 5. Order that the costs of the first trial abide the outcome of the new trial. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: MOTOR ACCIDENTS COMPENSATION - Motor Accidents Compensation Act 1999, s 118 - fraudulent claim - false and misleading conduct for purpose obtaining a financial benefit

STATUTES - construction - Motor Accidents Compensation Act 1999, ss 118(1) and (2) - construction of "a financial benefit" and "the financial benefit"

EVIDENCE - error in factual findings - reasoning based on supposition - reasoning unsupported by facts

EVIDENCE - cross-examination - witness' credit - cross-examination erroneously curtailed