Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2014] NSWCA 440

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2014] NSWCA 440 Hearing dates: 5 November 2014 Decision date: 19 December 2014 Before: Macfarlan JA at [1]; Meagher JA at [77]; Sackville AJA at [78] Decision: The appeal is 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: INSURANCE - trade credit insurance - Insurance Contracts Act 1984 (Cth) s 28(3) - respondent insurer rejected claim made by appellants under trade credit insurance policy indemnifying appellants against customer's insolvency - whether insurer entitled to reduce its liability to nil due to appellants' failure to comply with duty of disclosure - whether insurer would have issued policy if non-disclosure had not occurred - whether insurer discharged legal onus of proof by calling ultimate decision-maker despite not calling subordinate employees to give evidence - whether primary judge acted contrary to principle in Jones v Dunkel by inferring that evidence of subordinate officers would have assisted insurer's case - content of insured's evidentiary burden under s 28(3) of the Insurance Contracts Act 1984 (Cth) - appeal dismissed

EVIDENCE - evidentiary onus - respondent insurer rejected claim made by appellants under trade credit insurance policy indemnifying appellants against customer's insolvency - whether insurer entitled to reduce its liability to nil due to appellants' failure to comply with duty of disclosure - whether insurer discharged legal onus of proof by calling ultimate decision-maker despite not calling subordinate employees to give evidence - content of insured's evidentiary burden under s 28(3) of the Insurance Contracts Act 1984 (Cth) Legislation Cited: Insurance Contracts Act 1984 (Cth), s 28 Cases Cited: Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; 98 ACSR 301 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2014] NSWCA 69 Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 Watts v Rake [1960] HCA 58; 108 CLR 158 Category: Principal judgment Parties: Prepaid Services Pty Ltd (First Appellant) Optus Mobile Pty Ltd (Second Appellant) Virgin Mobile (Australia) Pty Ltd (Third Appellant) Atradius Credit Insurance NV (Respondent) Representation: Counsel: NC Hutley SC/DA McLure (Appellants) CRC Newlinds SC/TN Mehigan (Respondent) Solicitors: Minter Ellison (Appellants) Allens (Respondent) File Number(s): CA 2014/66690 Decision under appeal Jurisdiction: 9111 Citation: Prepaid v Atradius (No 2) [2014] NSWSC 21 Date of Decision: 2014-02-07 00:00:00 Before: McDougall J File Number(s): SC 2009/298684