Cape Byron Power I Pty Ltd v HSB Engineering Insurance Ltd [2017] NSWSC 1081

Supreme Court New South Wales

Medium Neutral Citation: Cape Byron Power I Pty Ltd v HSB Engineering Insurance Ltd [2017] NSWSC 1081 Hearing dates: 23, 24, 25 May 2017 Date of orders: 18 August 2017 Decision date: 18 August 2017 Jurisdiction: Equity Before: Parker J Decision: Parties to confer and bring in Short Minutes of Order to give effect to these reasons within 28 days Catchwords: Insurance – debt servicing standing charges policy – damage to works under construction – indemnity over period of "delay" in completion of project – construction of policy – concurrent causes of delay – quantum of debt charges recoverable – interest on claim – unreasonableness of insurer in declining claim Evidence – expert opinion – admissibility – proper basis for opinion – ultimate issue – documentary evidence with opinions tendered without objection Evidence – failure to call witnesses – conditions for drawing adverse inferences – availability of witness – knowledge of witness – onus of proof – lapse of time Legislation Cited: Evidence Act 1995 (NSW), ss 79, 80 Insurance Contracts Act 1984 (Cth), s 57 Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53 Jones v Dunkel (1959) 101 CLR 298 Payne v Parker [1976] 1 NSWLR 191 Texts Cited: Peter Mann, Mann's Annotated Insurance Contracts Act (7th ed, 2016, Thomson Reuters) Category: Principal judgment Parties: Cape Byron Power I Pty Ltd (First Plaintiff) Cape Byron Power II Pty Ltd (Second Plaintiff) HSB Engineering Insurance Ltd (First Defendant) AAI Limited (Second Defendant) Representation: Counsel: SR Donaldson SC/JA Wright (Plaintiffs) P Greenwood SC/JL Clark (Defendants)