Zeait v Insurance Australia Limited t/as NRMA [2017] NSWSC 1158

Supreme Court New South Wales

Medium Neutral Citation: Zeait v Insurance Australia Limited t/as NRMA [2017] NSWSC 1158 Hearing dates: 22 August 2017 Decision date: 31 August 2017 Jurisdiction: Common Law Before: Adamson J Decision: (1) Summons dismissed.

(2) Unless either party makes an application in writing to my Associate within seven days hereof, order the plaintiff to pay the defendant's costs of the proceedings. Catchwords: APPEAL – where defendant refused to pay claim on policy of comprehensive motor insurance – whether there was a reasonable apprehension of bias where magistrate had read an earlier appeal decision in same proceedings – whether magistrate was in error in drawing inference adverse to plaintiff for failure to call a witness regarded as being in plaintiff's "camp" – whether magistrate erred in failing to provide adequate reasons – whether it was open to magistrate to find that claim excluded because collision was intentional – magistrate not satisfied that claim made fraudulently – HELD – no reasonable apprehension of bias where magistrate had disclosed to parties he had read earlier decision and where no parties had objected – magistrate did not err in drawing inference adverse to plaintiff for failure to call a witness – reasons provided by magistrate sufficiently set out – magistrate's finding that plaintiff not entitled to be indemnified by defendant not in error where damage to vehicle was proved to be caused intentionally and excluded – no inconsistency between finding on exclusion clause and no finding that claim made fraudulently – appeal dismissed Legislation Cited: Insurance Contracts Act 1984 (Cth), s 56 Local Court Act 2007 (NSW), ss 39, 40 Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R 67 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438; [2002] HCA 51 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Jones v Dunkel (1959) 101 CLR 298 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 Onassis and Calerropolous v Vergiottis [1968] 2 Lloyds Rep 403 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28; (2001) 75 ALJR 982 The Nominal Defendant v Kostic [2007] NSWCA 14 To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279; [2001] VSCA 48 Category: Principal judgment Parties: Nini Zeait (Plaintiff) Insurance Australia Limited t/as NRMA (ABN 11 000 016 722)(Defendant) Representation: Counsel: J Jobson (Plaintiff) G Carolan (Defendant)