Ayteniz v NRMA Insurance - [2003] NSWSC 406

CITATION: Ayteniz v NRMA Insurance [2003] NSWSC 406

HEARING DATE(S): 12 May 2003

JUDGMENT DATE:
19 May 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The appeal is dismissed; (2) The verdict in favour of the defendant is confirmed; (3) The amended summons is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal decision of Local Court Magistrate - insurance - wilful misconduct

LEGISLATION CITED: Local Court (Civil Claims) Act 1970 (NSW) - 69

CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Craig v Associated National Insurance Co Ltd (1983) 71 FLR 455
Carr v Neil [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
House v The King (1936) 55 CLR 499
Pace v Read [2000] NSWSC 823
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588

PARTIES :

Erdal Ayteniz
(Plaintiff)
NRMA Insurance Limited
(Defendant)

FILE NUMBER(S): SC 11861/2002

COUNSEL:
Mr E Gramelis
(Plaintiff)
Mr P Mahony
(Defendant)

SOLICITORS:
Stojanovic Solicitors
(Plaintiff)
Ms A Heydon
Abbott Tout
(Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 214/2001

LOWER COURT
JUDICIAL OFFICER : Giles LCM

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 19 MAY 2003

NRMA INSURANCE LIMITED

– wilful misconduct)

1 MASTER: By amended summons filed 11 February 2003, the plaintiff seeks, firstly, leave to appeal the decision of Giles LCM dated 7 June 2002 in local court proceedings 214/2001; secondly, that the judgment of the Magistrate dated 7 June 2002 be set aside; and thirdly, entry of judgment for the plaintiff on the statement of liquidated claim, or alternatively, that the matter be remitted to the Local Court for a new trial. The plaintiff relied on two affidavits of Steven Stojanovic sworn 18 December 2002. This matter has been referred to a Master for hearing by the list Judge.

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) (the Act) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. It cannot be said that the Tribunal member acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479…

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: [2003] NSWSC 406
Decision Date: 19 May 2003

CaseChat Overview and Summary

The case of Ayteniz v NRMA Insurance is an appeal brought against a decision of a Local Court Magistrate. The appellant, Ayteniz, sought to challenge the magistrate's ruling which dismissed their claim for compensation against NRMA Insurance. The nature of the dispute centres on whether NRMA Insurance was liable to pay compensation for damages incurred by the appellant following a motor vehicle accident. The appellant argued that the damage was a direct result of the accident, while NRMA Insurance contended that the damage was due to the appellant's wilful misconduct.

The central legal issue before the court was whether the appellant's actions constituted wilful misconduct, thereby excusing NRMA Insurance from liability under the insurance policy. This required the court to interpret the terms of the insurance policy and assess the conduct of the appellant in light of the policy's exclusions. The court needed to determine if the damage to the vehicle was indeed caused by the appellant's wilful misconduct, as defined in the policy.

The court meticulously examined the evidence presented and the terms of the insurance policy. It found that the appellant's actions did not amount to wilful misconduct as defined in the policy. The court concluded that the damage resulted from the accident itself and not from any subsequent actions by the appellant that could be classified as wilful misconduct. Consequently, the appeal was dismissed, affirming the magistrate's decision. The court's reasoning was grounded in a careful analysis of the policy terms and the factual circumstances surrounding the incident.

Orders