McLennan v Insurance Australia Ltd [2014] NSWCA 300

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McLennan v Insurance Australia Ltd [2014] NSWCA 300 Hearing dates: 31 July 2014 Decision date: 02 September 2014 Before: Beazley P at [1]; Meagher JA at [1]; Ward JA at [1] Decision: (1) Appeal allowed. (2) Set aside the judgment of the District Court given on 16 August 2013. (3) Judgment for the appellant against the respondent in the amount of $750,000. (4) The respondent pay the appellant interest on that judgment sum calculated in accordance with s 57 of the Insurance Contracts Act 1984 (Cth) from 27 June 2007 until the day on which payment of the judgment sum is made. (5) Respondent pay the appellant's costs of the proceedings in the District Court. (6) Respondent pay the appellant's costs of this appeal. [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 - fire insurance - construction of insuring clause - onus of proof - where insurance policy does not cover loss caused by fire deliberately lit - whether appellant insured has onus of proving fire not deliberately lit Legislation Cited: Insurance Contracts Act 1984 (Cth), ss 34, 35, 57 Insurance Contracts Regulations 1985, Part II, Div 2 Workers Compensation Act 1926-1929 (NSW), s 6(1) Cases Cited: Beresford v Royal Insurance Co [1938] AC 586 British & Foreign Marine Insurance Co Ltd v Gaunt [1921] 2 AC 41 Craig v Associated National Insurance Co Ltd [1984] 1 Qd R 209 Gordon v Australian & New Zealand Theatres Ltd (1940) 40 SR (NSW) 512 Gorman v Hand in Hand Insurance Co (1877) IR 11 CL 224 GRE Insurance Ltd v Ormsby (1982) 29 SASR 498 In re Hooley Hill Rubber and Chemical Co and Royal Insurance Co [1920] 1 KB 257 Kodak (A/asia) Pty Ltd v Retail Traders Mutual Indemnity Insurance Association (1942) 42 SR (NSW) 231 Levy v Assicurazione Generali [1940] AC 791 Midland Insurance Co v Smith (1881) 6 QBD 561 Munro, Brice & Co v War Risks Association Ltd [1918] 2 KB 78 Pye v Metropolitan Coal Co Ltd [1934] HCA 9; 50 CLR 614 Slattery v Mance [1962] 1 QB 676 Spinney's (1948) Ltd v Royal Insurance Co Ltd [1980] 1 Ll Rep 406 The Alexion Hope [1988] 1 Lloyd's Rep 311 The Captain Panagos DP [1986] 2 Lloyd's Rep 470 The Galatia [1979] 2 All ER 726 Wallaby Grip Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9; 240 CLR 444 Texts Cited: Clarke, The Law of Insurance Contracts (6th ed 2009, Informa) Stone, "Burden of Proof and Judicial Process: A Commentary on Joseph Constantine Steamship Ltd v Imperial Smelting Corporation Ltd" (1941) 60 LQR 262 Sutton, Insurance Law in Australia (3rd ed 1999, LBC) Welford and Otter-Barry, The Law Relating to Fire Insurance (3rd ed 1932, Butterworth & Co) Williston, A Treatise on the Law of Contracts (rev ed 1936, Baker, Voorhis & Co) III at 1939 Category: Principal judgment Parties: Jacqueline Isabell McLennan (Appellant) Insurance Australia Ltd t/a NRMA Insurance (Respondent) Representation: Counsel: RA Cavanagh SC, CJ Callaway (Appellant) BW Walker SC, JJ Young (Respondent) Solicitors: Carrolls Lawyers (Appellant) William Roberts Lawyers (Respondent) File Number(s): 2013/269509 Decision under appeal Jurisdiction: 9101 Citation: McLennan v Insurance Australia Ltd t/as NRMA Insurance [2013] NSWDC 148 Date of Decision: 2013-08-16 00:00:00 Before: Neilson DCJ File Number(s): 2009/335955