Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2018] NSWCA 342

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2018] NSWCA 342 Hearing dates: 20, 21, 22, 23 and 27 August 2018 Date of orders: 24 December 2018 Decision date: 24 December 2018 Before: Beazley P at [1]; Meagher JA at [2]; Leeming JA at [169] Decision: 1. Direct the parties to file, by 5 pm on 25 January 2019, agreed short minutes of order providing for the disposal of the appeal and cross appeal in accordance with these reasons, including as to the costs of the proceedings below as between Mobis Australia and XL and the costs of the appeal and cross appeal. 2. If the parties are unable to agree on such short minutes, direct them to lodge with the President's Associate, by 5 pm on 25 January 2019, the draft short minutes of order for which each contends and written submissions (not exceeding 5 pages) supporting their position on each of the matters in relation to which they have been unable to reach agreement, with a view to the Court then resolving those matters on the papers. Catchwords: EQUITY – rectification – common intention and mistake – antecedent informal agreement – whether € 10 million hail limit contained in master policy for international programme of insurance was intended to be included in but mistakenly omitted from Australian local policy

INSURANCE – measure of indemnity – reinstatement – whether cost of replacement refers to costs actually incurred in replacement

INSURANCE – business interruption insurance – formula for assessment of insured loss of gross profit – whether accounting provisions that would have been made for depreciation of plant and equipment in fact destroyed are sums saved during indemnity period in consequence of insured damage in respect of charges and expenses payable out of such gross profit