Anndean Pty Ltd v South British Insurance Company Limited - [1987] TASSC 46

TASSC A42/1987

CITATION: Anndean Pty Ltd v South British Insurance Company Limited [1987] TASSC 46; A42/1987

PARTIES:  ANNDEAN PTY LTD
  v
  SOUTH BRITISH INSURANCE COMPANY LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  489/1980
DELIVERED ON:  14 August 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF:  Underwood J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Plaintiff:
             Defendant:
Solicitors:
             Plaintiff:
             Defendant:

Judgment Number: TASSC A42/1987
Number of paragraphs: 28

Serial No A42/1987
File No 489/1980

ANNDEAN PTY LTD v SOUTH BRITISH INSURANCE COMPANY LIMITED

REASONS FOR JUDGMENT UNDERWOOD J

14 August 1987

This is a claim upon a policy of insurance. The policy is a contract of marine insurance extended to include land risks incidental to the sea voyage. The following are the circumstances which led to the claim being made.

Some time prior to 1974, a Mr Crosby and a Professor Dunbar designed and produced educational material which they called "Basic Accountancy Slide Charts". The material comprises five flat cardboard sleeves, open at each end. Each sleeve measures approximately 29cm x 11cm x 1cm. On one side of the sleeve a small rectangular "window" is cut out. Inside each sleeve is a single flat piece of cardboard. On both sides of the sleeve and the cardboard slide information and hypothetical calculations are printed. The information on the sleeve can be viewed through the "window" by sliding the cardboard along the sleeve. Each of the five sleeves and its slide contain instruction on, and examples of, one of five basic accounting procedures. The whole of this material is packaged in a box entitled "Basic Accountancy Slide Charts; Journals, Ledger Accounts, General Journals, Final Accounts and Balance Sheet, Analysis and Interpretation". The idea was that persons who needed to understand, and keep records in accordance with the five basic accounting functions covered by the material, could do so if they studied these slide charts.

In 1974, Mr Crosby and Professor Dunbar entered into an agreement with Mr Richard Porter, a Tasmanian businessman, whereby it was agreed that Mr Porter would manufacture, promote and sell the slide charts. Mr Crosby and Professor Dunbar were to receive a $2 royalty for each box of slide charts sold.

Mr Porter commissioned a brief preliminary evaluation from a market researcher and improved the quality and presentation of the slides and the box containing them. Ten thousand of these kits of basic accountancy slide charts were then manufactured in Melbourne. All of this cost in the vicinity of $30,000.

The boxes of slide charts were in turn packed into boxes of fives, tens and twenties. These were delivered to the office of an advertising agency in St Kilda Road, Melbourne, referred to in the evidence as "Gartons".

In about early 1976 Mr Porter entered into an agreement with an accountant, Leonard Drever. The agreement was that Mr Drever would sell the accountancy slide charts in Melbourne. Mr Drever was to be paid expenses and receive half of the net profits of sale. At some stage, which was not…

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 Anndean Pty Ltd v South British Insurance Company Limited

Details

AGLC: Anndean Pty Ltd v South British Insurance Company Limited [1987] TASSC 46
Case: [1987] TASSC 46
Decision Date: 14 August 1987

CaseChat Overview and Summary

In Anndean Pty Ltd v South British Insurance Company Limited, the plaintiff sought compensation from the defendant for the loss of accountancy slide charts during their transportation from Melbourne to Hobart. The central legal issues were whether the plaintiff had established that the loss occurred within the specified period of insurance and whether the risk had attached to the goods at the time of the loss. The court considered statutory provisions under the Marine Act 1909, specifically Section 36 and the 2nd Schedule, which provide rules for the construction of marine insurance policies. The expression "lost or not lost" typically allows for retrospective coverage, but the risk must still attach to the goods.

The court found that the policy was both a voyage policy and a time policy, as indicated by the dates specified in the certificate of insurance. The risk attached only if the loss occurred within the specified time limits and during the described voyage. The court concluded that the plaintiff failed to prove that the loss occurred after the risk had attached, as the goods were likely stolen before they could leave the place of storage for the commencement of transit. Consequently, the defendant was not liable to indemnify the plaintiff for the loss of the goods. The court dismissed the plaintiff's claim, and judgment was entered in favour of the defendant.

Orders