Vero Insurance Ltd v Australian Prestressing Services Pty Ltd [2013] NSWCA 181

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Vero Insurance Ltd v Australian Prestressing Services Pty Ltd [2013] NSWCA 181 Hearing dates: 16 April 2013 Written submissions 26, 30 April 2013 Decision date: 21 June 2013 Before: Beazley P at [1]; Meagher JA at [2]; Simpson J at [65] Decision: (1) Appeal allowed in part. (2) Order 2 made on 9 March 2012 and Orders 1 and 2 made on 27 April 2012 by Gibson DCJ be set aside. (3) Direct the parties to calculate the pre-judgment interest due on the amount of $250,000 up to 27 April 2012 and to prepare and lodge with the Court a consent order providing for the entry of judgment for the first and second respondents against the appellant for $250,000 plus the amount of that interest. That judgment is to take effect on 27 April 2012 and the consent order is to be filed within seven days of the date of this judgment. (4) Direct the parties to lodge with the Court written submissions as to the order for costs which should be made in relation to the costs of the appeal. The respondents to file their written submissions within seven days of the date of this judgment and the appellant to file its submissions within seven days thereafter. The Court will then determine the question of costs on the papers. [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: INSURANCE - construction of insurance contract - respondents insured by appellant in relation to contract works including a cofferdam wall - substantial rainfall damaged cofferdam wall and resulted in risk might fail - expenses incurred by respondents to prevent failure of cofferdam wall - whether expenses recoverable under temporary protection extension as expenses deemed necessary by insured to avoid further loss or damage to insured property - whether expenses recoverable under general insuring clause or under implied term as expenses reasonably incurred to avoid insured loss, damage or liability - whether expenses within "dewatering operations" exclusion