Stealth Enterprises Pty Limited trading as The Gentleman’s Club v Calliden Insurance Limited [2015] NSWSC 1270

Supreme Court New South Wales

Medium Neutral Citation: Stealth Enterprises Pty Limited trading as The Gentleman's Club v Calliden Insurance Limited [2015] NSWSC 1270 Hearing dates: 9 June 2015, 10 June 2015, 11 June 2015, 12 June 2015 and 17 June 2015 and further written submissions on 23 June 2015 Date of orders: 03 September 2015 Decision date: 03 September 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Judgment for Calliden.

The usual order as to costs is that they follow the event. In this case, that would be an order that Stealth Enterprises pay Calliden's costs, as agreed or assessed.

Parties will be heard if some other order is sought.

The parties should file short minutes of orders reflecting the conclusions reached in this judgment, within 14 days. Catchwords: INSURANCE – fire and business interruption insurance – losses and claims – insurance policy – s 21 Insurance Contracts Act 1984 (Cth) – non-disclosure – brothel and escort agency – premises damaged by fire – insurer would not have insured if it was disclosed that sole director and manager were members of the Comancheros – insurer would not have insured if it was disclosed that business registration had lapsed – fraud not established – Jones v Dunkel inference – s 28 Insurance Contracts Act 1984 (Cth) – ability to reduce liability to nil

EVIDENCE – admissibility and relevancy – opinion evidence – expert evidence – conduct of outlaw motorcycle gangs as a matter of common knowledge

EVIDENCE – witnesses – application to call late evidence – application granted – reliability and credibility of evidence Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Crimes (Criminal Organisations Control) Bill 2009 (NSW) Evidence Act 1995 (NSW) Insurance Contracts Act 1984 (Cth) Liquor Act 2007 (NSW) Prostitution Act 1992 (ACT) Cases Cited: Aon Risk Services Australia Ltd v Lumley General Insurance [2005] FCA 133 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Buzzle Operations v Apple Computer Australia [2009] NSWSC 225; (2009) 74 NSWLR 469 CGU Insurance Ltd v Porthouse [2008] HCA 30; (2008) 235 CLR 103 Crown Glass & Aluminium P/L v Ibrahim [2005] NSWCA 195 Farkas v R [2014] NSWCCA 141 Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) 204 ALR 258 Hammer Waste Pty Ltd v QBE Mercantile Mutual Ltd [2002] NSWSC 1006; (2002) ANZ Insurance Cases 61-553 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Jones v Toben [2002] FCA 1150; (2002) 71 ALD 627 Lindsay v CIC Insurance (1989) 16 NSWLR 673 McGregor v McGregor [2012] FamCAFC 69 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 New Cap Reinsurance Corporation Limited (in liquidation) v Daya [2010] NSWSC 1226 Permanent Trustee Australia Ltd v FAI General Insurance Company Ltd [2003] HCA 25; 214 CLR 514 R v Giam (No 2) [1999] NSWCCA 378 R v Hawi [2012] NSWSC 332 R v Jung [2006] NSWSC 658 Rejfek v McElory [1965] HCA 46; 112 CLR 517 Sanchez-Sidiropoulos v Canavan [2015] NSWSC 1139 Stealth Enterprises Australia Pty v Calliden Insurance Limited [2013] NSWSC 825 Stealth Enterprises Australia Pty Limited trading as The Gentlemen's Club v Calliden Insurance Limited [2013] NSWSC 1757 Stealth Enterprises Australia Pty Limited t/as The Gentlemen's Club v Calliden Insurance Limited (Supreme Court (NSW), Registrar Bradford, 27 May 2014, unrep) Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 645 Texts Cited: J D Heydon, Cross on Evidence, (10th ed 2015, Lexis Nexus) at 165 – 166 Odgers at [1.4.600]) Category: Principal judgment Parties: Stealth Enterprises Australia Pty Limited trading (ACN 135 290 10) as The Gentlemen's Club (Plaintiff) Calliden Insurance Limited (ACN 004 125 268) (Defendant) Representation: Counsel: Mr R Cavanagh SC with Mr S Maybury (Plaintiff) Mr J Sexton SC with Mr M Heath (Defendant)