Ningaloo Escape Pty Limited v The Hollard Insurance Company Pty Limited (ABN 78 090 584 473) [2017] NSWDC 147

District Court New South Wales

Medium Neutral Citation: Ningaloo Escape Pty Limited v The Hollard Insurance Company Pty Limited (ABN 78 090 584 473) [2017] NSWDC 147 Hearing dates: 1, 2 and 3 May 2017 Date of orders: 13 June 2017 Decision date: 13 June 2017 Jurisdiction: Civil Before: Wilson SC DCJ Decision: 1. Judgment for the plaintiff in the sum of $125,765.17, plus interest; 2. The defendant to pay the plaintiff's costs of the proceedings; 3. The exhibit to be retained by the Court for 28 days; 4. Liberty to apply within 14 days to vary the cost order, if necessary; 5. I direct that within 14 days, the parties submit either a joint submission on the question of interest or, alternatively, if agreement cannot be reached, then submissions as to same, not exceeding five pages in length. Catchwords: CONTRACT of INSURANCE– Interpretation – Textual or Contextual PROPERTY DAMAGE to caravan park caused by Cyclone BREACH OF CONTRACT – obligation under the contract – scope of indemnity EXPERT REPORT – admissibility failure to comply with Expert Witness Code of Conduct – prejudice – whether to "order otherwise" CALCULATION OF LOSS – lack of precision in calculation of claim – difficulty of assessment – obligation of court Legislation Cited: Insurance Contracts Act 1984 (Cth) Cases Cited: ABC v Australian Performing Right Association Limited (1973) 129 CLR 99 Cahill v Kenna [2014] NSWSC 1763 Caine v Lumley General Insurance Ltd [2003] NSWCA 4 Codelfa Construction Pty Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 Cordon Investments Pty Limited v Lesdor Properties Pty Limited [2012] NSWCA 184 McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579 Wilkie v Gordian Runoff Limited (2005) 221 CLR 522 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37, (2015) 256 CLR 104 Wood v Capita Insurance Services Limited [2017] UKSC 24 Texts Cited: Seddon Bigwood and Ellinghaus, Cheshier & Fifoot Law of Contract, LexisNexis Butterworths (10th Australian Ed.) Oxford Dictionary Macquarie Dictionary Category: Principal judgment Parties: Ningaloo Escape Pty Limited (plaintiff) The Hollard Insurance Company Pty Limited (ABN 78 090 584 473) Representation: Counsel: Mr Carey (plaintiff) Mr Mehigan (defendant)