AIG Insurance Australia Ltd v McMurray

Link copied
Case Copied 73 min read

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   AIG INSURANCE AUSTRALIA LTD -v- MCMURRAY [2023] WASCA 148

CORAM:   BUSS P

MITCHELL JA

VAUGHAN JA

HEARD:   20 - 22 DECEMBER 2022

DELIVERED          :   20 OCTOBER 2023

FILE NO/S:   CACV 93 of 2021

BETWEEN:   AIG INSURANCE AUSTRALIA LTD

Appellant

AND

FREDERICK WILLIAM MCMURRAY

First Respondent

JENNIFER GRACE MCMURRAY

Second Respondent

RUSSELL BRESLAND

Third Respondent

BRESLAND CONSULTANTS PTY LTD

Fourth Respondent

HANS BO KRISTIAN HOLGERSSON trading as HOLGERSSONS COMPLETE HOME SERVICE

Fifth Respondent

MOSMAN BAY CONSTRUCTION PTY LTD (in liq)

Sixth Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   SMITH J

Citation: McMURRAY v AIG INSURANCE AUSTRALIA LTD [No 5] [2021] WASC 300

File Number            :   CIV 2962 of 2016


Catchwords:

Contract - Construction of contracts - Contract of insurance - Insured property destroyed by fire - Insurer sought to rely on contract works exclusion clause to deny liability - Whether renovations to insured property constituted a 'structure' or 'structures' for the purposes of the contract works exclusion clause - Principles applicable to construction of insurance contracts - Consideration of purpose or object of insurance contract - Whether primary judge failed to take a background fact into account - Whether primary judge erred in applying contra proferentem principle - Construction of 'structure' by primary judge upheld

Evidence - Where insurer pleaded that the fire was caused by the self‑combustion of oily rags in a bin - Insurer claimed no conflicting or competing inference could be drawn from the evidence - Where 'intruder theory' was not pleaded by any party - Whether primary judge erred in allowing intruder theory to be advanced - Whether primary judge erred in finding that intruder theory rose above mere speculation - Whether primary judge erred in finding that both theories were equally possible so that the choice between them was mere conjecture - Whether statement made day after fire should have been admitted as evidence under business records exception in s 79C(2a) of Evidence Act 1906 (WA) - Whether statement should have been admitted as part of the res gestae - Whether primary judge erred in failing to draw Jones v Dunkel inferences against plaintiffs for failure by fourth-party to call witnesses - Turns on own facts

Interest - Challenge to interest award made pursuant to s 57 of Insurance Contracts Act 1984 (Cth) - Determination of date from which it was unreasonable for insurer to withhold payment - Finding by primary judge that overlapping insurance policies complicated assessment in error - Error established in primary judge's interest determination - Consideration of time required for investigation and determination of claim - Redetermination of date from which withholding payment became unreasonable - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 79C(2a), s 79C(6)
Insurance Contracts Act 1984 (Cth), s 57

Result:

Appeal dismissed
Cross-appeal allowed in part

Category:    B

Representation:

Counsel:

Appellant : M T McCulloch SC & C P K Russell
First Respondent
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read AIG Insurance Australia Ltd v McMurray and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] WASCA 148
Decision Date

CaseChat Overview and Summary

The appeal by AIG Insurance Australia Ltd against the primary judge's decision in McMurray v AIG Insurance Australia Ltd was dismissed. The primary judge's construction of the contract works exclusion clause was found to be correct. The court found that AIG had not established material error in terms of the appeal grounds concerning the cause of the fire. The plaintiffs' cross-appeal was allowed in part, and interest should be payable from 8 August 2016 rather than the 16 June 2017 as allowed by the primary judge. The appeal dismissed the first aspect of the cross-appeal, meaning that the challenge to the order that the plaintiffs' claims against the Bresland parties be dismissed does not arise if AIG's appeal fails. The court allowed the second aspect of the cross-appeal, which concerns the time from which interest on the judgment amount should be recoverable. The court found that the primary judge erred in concluding that 16 June 2017 was the day as from which it was unreasonable for AIG to have withheld payment of the amount it was liable to pay to the plaintiffs under the home insurance policy. Instead, the requisite unreasonableness for the purpose of s 57 of the Insurance Contracts Act existed as and from 8 August 2016.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.