Ali v Insurance Australia Limited - [2022] NSWCA 174

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ali v Insurance Australia Limited [2022] NSWCA 174
Hearing dates: 2 May 2022
Date of orders: 08 September 2022
Decision date: 08 September 2022
Before: Ward P at [1];
Leeming JA at [2];
Mitchelmore JA at [3]
Decision:
(1) Grant leave to appeal.
(2) Order that the applicant file a notice of appeal in accordance with the draft Notice of Appeal within 7 days.
(3) Appeal allowed.
(4) Answer the separate question, ordered by consent in the District Court on 25 March 2021: “The plaintiff’s claim in these proceedings is not barred by s 14 of the Limitation Act 1969 (NSW) as raised in Prayer 4 of the Further Amended Statement of Claim and paragraph 28 of the Defence to the Amended Statement of Claim, or any further or amended pleadings in relation to this question.”
(5) Set aside the order of the District Court dated 22 September 2021 dismissing the applicant’s claim and awarding costs to the respondent, and in lieu thereof order that paragraph 29 of the Defence to the Further Amended Statement of Claim be struck out under rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
(6) Remit the proceedings to the District Court for determination.
(7) The respondent pay the appellant’s costs of the appeal and the costs below of the determination of the separate question.

Catchwords:
INSURANCE – property insurance – home and contents – where claim by policyholder made following break-in at home – where drafting in policy used the word “cover” throughout – whether cause of action for damages arose at the time of property damage or upon determination of claim – whether claim against policy barred by Limitation Act 1969 (NSW), s 14 – whether “cover” where used in policy interchangeable with “indemnify”

Legislation Cited:
Corporations Act 2001 (Cth), ss 760A, 764A, 1011B, 1012B, 1013C, 1013D
Corporations Regulation 2001 (Cth), reg 7.9.15E
Insurance Contracts Act 1984 (Cth), s 11
Limitation Act 1969 (NSW), s 14

Cases Cited:
Australian Casualty Co Ltd v Federico (1986) 160 CLR 513; [1986] HCA 32
Be Financial Pty Ltd v Das [2012] NSWCA 164
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Global Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296
Globe Church Incorporated v Allianz Australia Insurance Limited (2019) 99 NSWLR 470; [2019] NSWCA 27
LCA Marrickville Pty Ltd v Swiss International SE [2022] FCAFC 17; (2022) 401 ALR 204
McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65
Paterson v Pongrass Group Operations Pty Ltd [2011] NSWSC 1588
Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Category: Principal judgment
Parties: Mukhtar Ali (Applicant)
Insurance Australia Limited (Respondent)
Representation:
Counsel:
Mr T Castle SC /…

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.

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Details

Case: [2022] NSWCA 174
Decision Date: 08 September 2022

CaseChat Overview and Summary

The appeal concerned a dispute between a policyholder, Ali, and an insurer, Insurance Australia Limited, regarding a claim made following a break-in at the policyholder's home. The policy was for home and contents insurance, and the insurer had used the word "cover" throughout the policy documents. The central question was whether the policyholder's cause of action for damages arose at the time of the property damage or upon the determination of the insurance claim, which had implications for whether the claim was barred by the Limitation Act 1969 (NSW).

The Court of Appeal was required to determine whether the term "cover" as used in the insurance policy was interchangeable with the term "indemnify". This determination was crucial to establishing when the cause of action accrued for the purposes of the Limitation Act 1969 (NSW), specifically section 14. The court also had to consider whether the policyholder's claim was indeed barred by this section, as raised in the pleadings.

The court reasoned that the word "cover" in the context of the insurance policy meant that the insurer undertook to indemnify the policyholder. Consequently, the cause of action for damages accrued at the time of the loss or damage, not upon the determination of the claim. The court allowed the appeal, finding that the policyholder's claim was not barred by section 14 of the Limitation Act 1969 (NSW). The District Court's order dismissing the claim was set aside, and the proceedings were remitted for determination, with the insurer ordered to pay the policyholder's costs of the appeal and the costs below related to the limitation issue.

Orders

Orders of the court

(1) Grant leave to appeal.

(2) Order that the applicant file a notice of appeal in accordance with the draft Notice of Appeal within 7 days.

(3) Appeal allowed.

(4) Answer the separate question, ordered by consent in the District Court on 25 March 2021: “The plaintiff’s claim in these proceedings is not barred by s 14 of the Limitation Act 1969 (NSW) as raised in Prayer 4 of the Further Amended Statement of Claim and paragraph 28 of the Defence to the Amended Statement of Claim, or any further or amended pleadings in relation to this question.”

(5) Set aside the order of the District Court dated 22 September 2021 dismissing the applicant’s claim and awarding costs to the respondent, and in lieu thereof order that paragraph 29 of the Defence to the Further Amended Statement of Claim be struck out under rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

(6) Remit the proceedings to the District Court for determination.

(7) The respondent pay the appellant’s costs of the appeal and the costs below of the determination of the separate question.

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.

Medium Neutral Citation:	Ali v Insurance Australia Limited [2022] NSWCA 174
Hearing dates:	2 May 2022
Date of orders:	08 September 2022
Decision date:	08 September 2022
Before:	Ward P at [1]; Leeming JA at [2]; Mitchelmore JA at [3]
Decision:	(1) Grant leave to appeal. (2) Order that the applicant file a notice of appeal in accordance with the draft Notice of Appeal within 7 days. (3) Appeal allowed. (4) Answer the separate question, ordered by consent in the District Court on 25 March 2021: “The plaintiff’s claim in these proceedings is not barred by s 14 of the Limitation Act 1969 (NSW) as raised in Prayer 4 of the Further Amended Statement of Claim and paragraph 28 of the Defence to the Amended Statement of Claim, or any further or amended pleadings in relation to this question.” (5) Set aside the order of the District Court dated 22 September 2021 dismissing the applicant’s claim and awarding costs to the respondent, and in lieu thereof order that paragraph 29 of the Defence to the Further Amended Statement of Claim be struck out under rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). (6) Remit the proceedings to the District Court for determination. (7) The respondent pay the appellant’s costs of the appeal and the costs below of the determination of the separate question.
Catchwords:	INSURANCE – property insurance – home and contents – where claim by policyholder made following break-in at home – where drafting in policy used the word “cover” throughout – whether cause of action for damages arose at the time of property damage or upon determination of claim – whether claim against policy barred by Limitation Act 1969 (NSW), s 14 – whether “cover” where used in policy interchangeable with “indemnify”
Legislation Cited:	Corporations Act 2001 (Cth), ss 760A, 764A, 1011B, 1012B, 1013C, 1013D Corporations Regulation 2001 (Cth), reg 7.9.15E Insurance Contracts Act 1984 (Cth), s 11 Limitation Act 1969 (NSW), s 14
Cases Cited:	Australian Casualty Co Ltd v Federico (1986) 160 CLR 513; [1986] HCA 32 Be Financial Pty Ltd v Das [2012] NSWCA 164 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Global Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296 Globe Church Incorporated v Allianz Australia Insurance Limited (2019) 99 NSWLR 470; [2019] NSWCA 27 LCA Marrickville Pty Ltd v Swiss International SE [2022] FCAFC 17; (2022) 401 ALR 204 McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65 Paterson v Pongrass Group Operations Pty Ltd [2011] NSWSC 1588 Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Category:	Principal judgment
Parties:	Mukhtar Ali (Applicant) Insurance Australia Limited (Respondent)
Representation:	Counsel: Mr T Castle SC /…