Vero Insurance Limited v Rail Corporation New South Wales [2013] NSWCA 372

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Vero Insurance Limited v Rail Corporation New South Wales [2013] NSWCA 372 Hearing dates: 23, 24 May 2013 Decision date: 12 November 2013 Before: Barrett JA (at [1]); Ward JA (at [170]); Gleeson JA (at [171]) Decision: 1. Appeal allowed in part. 2. Vary Order (1) made in the Common Law Division on 17 August 2012 with respect to costs by omitting "up to and including 31 March 2011". 3. Set aside Order (2) made in the Common Law Division on 17 August 2012 with respect to costs. 4. Appeal otherwise dismissed. 5. That the respondents pay the appellant's costs of the appeal in so far as they relate to grounds of appeal 24, 25 and 26. 6. That the appellant pay the respondents' costs of the appeal except in so far as they relate to grounds of appeal 24, 25 and 26. [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 - collision between train and car at level crossing - claim by railway authorities against insurer of car - whether car owner/driver incurred legal liability "as a result of an accident" - whether placing of the car in the path of the train was intentional or inadvertent - APPEAL - interference with judge's findings of fact - re-assessment of all evidence Legislation Cited: Insurance Contracts Act 1984 (Cth), s 51 Uniform Civil Procedure Rules 2005, r 20.26 Cases Cited: Calderbank v Calderbank [1975] 3 WLR 586 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Rail Corporation NSW v Vero Insurance Ltd [2012] NSWSC 632 Rail Corporation NSW v Vero Insurance Ltd (No 2) [2012] NSWSC 926 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 Category: Principal judgment Parties: Vero Insurance Limited (Appellant) Rail Corporation New South Wales (First Respondent) Transport for New South Wales (Second Respondent) Representation: R J Burbidge QC/M K Scott/T L B Hickey (Appellant) G M Watson SC/D A Lloyd (Respondents) Lander & Rogers (Appellant) DLA Piper (Respondents) File Number(s): CA 2012/203064 Decision under appeal Citation: Rail Corporation NSW v Vero Insurance Ltd [2012] NSWSC 632; Rail Corporation NSW v Vero Insurance Ltd (No 2) [2012] NSWSC 926 Date of Decision: 2012-06-08 00:00:00 Before: Garling J File Number(s): SC 2008/289483