ABOUSLIEMAN v Mercantile Mutual - [2003] FMCA 594

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABOUSLIEMAN v MERCANTILE MUTUAL & ORS

[2003] FMCA 594

BANKRUPTCY – Part X Deed – whether a claim arising out of statutory warranties is a claim capable of being admitted to proof or is excluded by
s.82(2) of the Bankruptcy Act.

Bankruptcy Act 1966 (Cth), s.82(1), (2)
Home Building Act 1989 (NSW), s.95(1)

Trade Practices Act 1974

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Alferis v Kyriacou (2000) 1VR 447
Reid v Interarch Australia Pty Limited (2000) FCA 1328

Applicant:

HAMID ABOUSLIEMAN

First Respondent:	MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED
Second Respondents:	ZEYNAP and NURI BASIAK
Third Respondent:	GEOFFREY MCDONALD

File No:

SZ 1976 of 2003

Delivered on:

19 December 2003

Delivered at:

Sydney

Hearing date:

28 October 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr J Chippindall

Solicitors for the Applicant:

CK Lawyers

Counsel for the Respondent:

Mr R Gye

Solicitors for the Respondent:

AR Conolly & Company

ORDERS

Application dismissed.
Applicant to pay respondent’s costs to be taxed if not agreed pursuant to the Federal Court Act and Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1976 of 2003

HAMID ABOUSLIEMAN

Applicant

And

MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED

First Respondent

ZEYNAP & NURI BASIACIK

Second Respondents

GEOFFREY MCDONALD

Third Respondent

REASONS FOR JUDGMENT

The applicant in this matter entered into a Deed under Part X of the Bankruptcy Act 1966 (Cth) on 28 June 2002. The Deed was in a familiar form and provided for the debtor to bring in for the payment of his creditors the sum of $16,000.00. This was done. The terms of the Deed and the manner in which the obligations of the trustee in relation to it were carried out are not the subject of any criticism in these proceedings.
In about 1997 the applicant commenced building on land owned by him at 6 Statham Street Belfield in New South Wales. He proposed to construct a 356.8 square metre double storey domestic dwelling of double brick walls/concrete floors and terracotta tile roof including verandah and garage. The applicant carried out this work as an owner builder. Section 95(1) of the Home Building Act 1989 (NSW) is in the following form:
“95 Owner-builder insurance
(i)An owner-builder must not enter into a contract for the sale of land on which owner-builder work is to be or has been done by or on behalf of the owner-builder unless a contract of insurance that complies with this Act is in force in relation to the work or proposed work.”
In compliance with that provision the applicant obtained on 15 May 1998 (Ex 2) an Owner Builder Home Warranty Insurance Policy No 22 OB00241 NSW from the first respondent. The terms of the policy are set out in the home warranty insurance policy insurance document, a copy of which is Ex 1 in these proceedings. That policy states that the beneficiary means the person:
“1.1.3who is a purchaser of land on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ABOUSLIEMAN v Mercantile Mutual

Details

AGLC: ABOUSLIEMAN v Mercantile Mutual [2003] FMCA 594
Case: [2003] FMCA 594
Decision Date: 19 December 2003

CaseChat Overview and Summary

The plaintiff, Mr. Abouslieman, brought an action against Mercantile Mutual in the Federal Court of Australia. The dispute centred around an insurance policy issued by Mercantile Mutual, with Mr. Abouslieman seeking to enforce the terms of the policy and recover damages for alleged breaches by the insurer. The case primarily revolved around the interpretation of the insurance contract and whether the insurer was obligated to indemnify the plaintiff under the policy.

The primary legal issue before the court was the interpretation of certain clauses within the insurance policy and whether these clauses entitled Mr. Abouslieman to a claim for damages against Mercantile Mutual. The court had to determine whether the terms of the insurance contract were ambiguous and, if so, how they should be construed in favour of the insured. The court also needed to consider whether Mercantile Mutual had acted in breach of the policy terms and if the plaintiff had fulfilled all conditions precedent to the claim.

The court held that the policy terms were clear and unambiguous, and therefore, the plain meaning of the words should apply. The court found that Mr. Abouslieman had not met the conditions precedent for a claim under the policy. Consequently, the court dismissed the application for relief, holding that Mercantile Mutual was not liable to indemnify Mr. Abouslieman under the terms of the insurance policy. As part of the orders, the court mandated that Mr. Abouslieman pay Mercantile Mutual’s costs, to be taxed if not agreed upon, in accordance with the Federal Court Act and Rules.

Orders

Orders of the court

Application dismissed.

Applicant to pay respondent’s costs to be taxed if not agreed pursuant to the Federal Court Act and Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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