Insurance Australia Ltd t/as NRMA Insurance v El Kabbout [2014] NSWCA 426

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Insurance Australia Ltd t/as NRMA Insurance v El Kabbout [2014] NSWCA 426 Hearing dates: 1 December 2014 Decision date: 01 December 2014 Before: McColl JA at [1], Macfarlan JA at [33] Decision: Application for leave to appeal dismissed with costs [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: APPEAL - leave to appeal - applicant insurer held liable to pay claim in respect of motor vehicle written off after collision with tree - whether trial judge reversed the onus of proof - where expert evidence that accident could not have occurred as respondent contended - where trial judge misstated one aspect of expert's evidence - where applicant sought to avoid policy in reliance on claim respondent failed to be truthful and frank in relation to claim - whether applicant had established arguable error requiring correction to avoid injustice warranting appellate intervention - leave refused Legislation Cited: District Court Act 1973 (NSW) Evidence Act 1995 (NSW) Insurance Contract Act 1984 (Cth) Cases Cited: Collier v Lancer (No 2) [2013] NSWCA 186 Compania Naviera Vascongada v British & Foreign Marine Insurance Co Ltd (The Gloria) (1936) 54 Ll L Rep 35 Fox v Percy [2003] HCA 22; (2004) 214 CLR 118 Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366; (2005) 13 ANZ Ins Cas ¶61 - 639 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Norfeld Pty Ltd v Amanda Lee Jones trading as Watermark Patent and Trademark Attorneys [2014] NSWCA 408 Category: Principal judgment Parties: Insurance Australia Ltd t/as NRMA Insurance ACN 11 000 016 722 - Applicant Fadi El Kabbout - Respondent Representation: Counsel: MBJ Lee SC with LM Jackson - Applicant T Boyd - Respondent Solicitors: William Roberts Lawyers - Applicant Kheir Lawyers - Respondent: File Number(s): CA 2014/196927 Publication restriction: No Decision under appeal Citation: Kabbout v Insurance Australia Ltd t/as NRMA Insurance Ltd (District Court of NSW, Williams SC DCJ, 11 June 2014, unrep) Date of Decision: 2014-06-11 00:00:00 Before: Williams SC DCJ File Number(s): 2013/89917