Averkin v Insurance Australia Ltd [2016] NSWCA 122

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Averkin v Insurance Australia Ltd [2016] NSWCA 122 Hearing dates: 6 May 2016 Decision date: 23 May 2016 Before: McColl JA at [1]; Basten JA at [2]; Leeming JA at [30] Decision: 1. Appeal allowed.

2. Set aside orders 1 and 2 made by the District Court on 24 April 2015, and in lieu thereof enter judgment for the plaintiff.

3. Direct the parties to file and serve, within 14 days, submissions not exceeding 5 pages indicating the orders they propose as to (a) the amount of the judgment to be entered, if such an order is required, and (b) costs at first instance and on appeal, if any orders as to costs are sought. Catchwords: EVIDENCE – hearsay – business records – where representations made in connection with investigation relating to or leading to a criminal proceeding – burden of proof – representations contained in records made by police officer responding to report of burning vehicle – Evidence Act 1995 (NSW), s 69(2) and (3)

INSURANCE – policy insuring vehicle against destruction by fire – insurer denied indemnity and alleged insured was complicit in vehicle's destruction –whether primary judge reversed onus of proof – whether primary judge erred in admitting expert evidence as to engine immobiliser – whether primary judge erred in admitting records made by police relating to the incident – whether primary judge erred in concluding that insurer had established the exclusion applied – appeal allowed and judgment entered in favour of insured Legislation Cited: Companion Animals Regulation 2008 (NSW), cl 5 Evidence Act 1995 (Cth), s 143 Evidence Act 1995 (NSW), ss 59, 69, 140, 190; Pt 3.2 Motor Vehicle Standards Act 1989 (Cth) Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.35, 51.29 Vehicle Standard (Australian Design Rule 82/00 – Engine Immobilisers) 2006 Cases Cited: Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235 Averkin v Insurance Australia Ltd (30 March 2015, unrep) Averkin v Insurance Australia Ltd t/a NRMA Insurance (24 April 2015, unrep) Cassell v The Queen [2000] HCA 8; 201 CLR 189 Commercial Union Assurance of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34 Vitali v Stachnik [2001] NSWSC 303 Walsh v Walgett Shire Council [2014] NSWSC 812 Texts Cited: Uniform Evidence Law (December 2005, ALRC Report 102, NSWLRC Report 112, VLRC Final Report) Category: Principal judgment Parties: Mr Michael Averkin (Appellant) Insurance Australia Ltd (Respondent) Representation: Counsel: D R J Toomey SC, T B Jones (Appellant) G Carolan (Respondent)