Halikiotis & Halikiotis v Insurance Australia Ltd [2011] NSWDC 31

District Court New South Wales

Medium Neutral Citation: Halikiotis & Halikiotis v Insurance Australia Ltd [2011] NSWDC 31 Hearing dates: 3, 4, 5 & 23 November 2009 Decision date: 01 March 2011 Jurisdiction: Civil Before: Neilson DCJ Decision: (1) I give judgment for the first cross-defendant against the first cross-claimant. (2) I order the first cross-claimant to pay the first cross-defendant's costs. (3) I give judgment for the second cross-defendant against the second cross-claimant. (4) I order the second cross-claimant to pay the second cross-defendant's costs. (5) I order the first and second defendants to pay the plaintiff's costs. (6) I dissolve the stay of execution of the judgment entered against the defendants on 30 October 2009. Catchwords: CONTRACT - insurance - comprehensive motor vehicle insurance - GH bought a motor vehicle for his wife MH - GH and MH entered into a hire purchase agreement with VWFS as "hirers" - vehicle registered in the name of MH - vehicle insured by GH with IAG, with MH nominated as a driver of the vehicle - vehicle was alleged to have been stolen - it was found burning by police and was "written off" - VWFS obtained judgment against GH and MH for money outstanding under the hire purchase agreement - GH sought to enforce the policy against IAG and MH also sought to enforce the policy relying on Insurance Contracts Act 1984 (Cth) s 48 - GH and MH fail to prove that vehicle was "stolen and found damaged" as GH failed to prove that the vehicle was taken without his consent - GH and MH fail to prove "loss or damage caused by vandalism or a malicious act" as they fail to prove the damage was done without the consent of GH - IAG relied on an exclusion clause - before insurer can rely on exclusion clause the insured must establish a loss covered by the policy - the entitlement of MH under the Insurance Contract Act 1984 (Cth) was no greater than that of an insured under the policy and if GH could not recover under the policy on its proper construction neither could MH Legislation Cited: Insurance Contracts Act 1984 (Cth) s 48 Cases Cited: Baroora Pty Ltd v Provincial Insurance Ltd (1992) 26 NSWLR 170 CE Heath Casualty and General Insurance Ltd v Grey (1993) 32 NSWLR 25 Commercial Union Assurance Co of Aust. Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Commonwealth Bank of Australia v Baltica General Insurance Co ltd (1992) 28 NSWLR 579 Compania Naviera Vascongada v British & Foreign Marine Insurance Co Ltd (The Gloria) (1936) 54 L1.L.Rep. 35 GIO Australia Ltd v P Ward Civil Engineering Pty Ltd [2000] NSWSC 371 General Motors Acceptance Corp Aust v RACQ Insurance Ltd [2003] QSC 80 Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366 McDonald v CE Heath Underwriting and Insurance (Aust) Ltd (1997) 9 ANZIC 61. 362 Palamisto General Enterprises SA v Ocean Marine Insurance Co Ltd [1972] 2 QB 625 Simon v NRMA Insurance Ltd (NSWCA, 22 Oct 1991, unreported) VL Credits Pty Ltd v Switzerland General Insurance Co [1990] VR 938 Texts Cited: Derrington and Ashton, The Law of Liability Insurance (2nd edition) 2005, [10-22] p 809 Sutton, Insurance Law in Australia (2nd edition) 1991, [9.81] p 556 Category: Principal judgment Parties: Volkswagen Financial Services Australia Ltd (Plaintiff) George Halikiotis (First Defendant / First Cross-Claimant) Maria Halikiotis (Second Defendant / Second Cross-Claimant) Insurance Australia Ltd (First Cross-Defendant / Second Cross-Defendant) Representation: A R Vincent (Plaintiff) C H Cassimatis (First Defendant / First Cross-Claimant) A D Crossland (Second Defendant / Second Cross-Claimant) G B Carolan (Cross-Defendant) Deacons (Plaintiff) Craig Milne and Co (First Defendant / First Cross-Claimant) Legal Aid NSW (Second Defendant / Second Cross-Claimant) Mason Black Lawyers (Cross-Defendant) File Number(s): 315172/2008