McLennan v Insurance Australia Ltd t/as NRMA Insurance [2013] NSWDC 148

District Court New South Wales

Medium Neutral Citation: McLennan v Insurance Australia Ltd t/as NRMA Insurance [2013] NSWDC 148 Hearing dates: 29, 30 April & 1, 2, 3, 6, 7 May 2013 Decision date: 16 August 2013 Before: Neilson DCJ Decision: I give verdict and judgment for the defendant against the plaintiff I order that the plaintiff pay the defendant's costs on an indemnity basis incurred in proving the facts stated in paragraphs 5(b), 7 and 9 and the document described in paragraph 11 of the Notice to Admit Facts and Authenticity of Documents dated 21 December 2010 that was served on the plaintiff on that day, the costs to be payable from 5 January 2011 to date I order that the plaintiff pay the defendant's costs on the ordinary basis until 17 February 2012, except for those costs referred to in the first order and on an indemnity basis from 18 February 2012 Catchwords: INSURANCE - Plaintiff owner of property - Building and contents insured by defendant - Property was set on fire - Arson - Building and contents severely damaged - Plaintiff seeking to claim under policy - Defendant resists plaintiff's claim - Whether plaintiff caused her property to be set on fire - Question of plaintiff's financial position prior to fire - Whether plaintiff had a financial motive to claim under policy - Whether plaintiff failed to cooperate with police - Whether plaintiff failed to cooperate with insurer - Whether plaintiff entitled to recover under policy - Whether plaintiff discharged her onus of proof - Whether trial judge required to consider defendant's positive defences Legislation Cited: Crimes Act 1900 s 197(1)(b) Evidence Act 1995 s 63 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Halikiotis v Insurance Australia Ltd [2011] NSWDC 31 Secure Funding Pty Ltd v Insurance Australia Ltd [2010] FCA 1094 Vidal v NRMA Insurance Ltd [2005] NSWCA 390 Category: Principal judgment Parties: Jaqueline Isabell McLennan (Plaintiff) Insurance Australia Ltd t/as NRMA Insurance (Defendant) Representation: Mr B Walker SC & Mr J Young (Defendant) In person (Plaintiff) Williams Roberts Lawyers (Defendant) File Number(s): 2009/335955