Carillion Construction Ltd v AIG Australia Ltd - [2016] NSWSC 495

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Carillion Construction Ltd v AIG Australia Ltd [2016] NSWSC 495
Hearing dates: 17 and 18 March 2016
Decision date: 22 April 2016
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Separate questions answered; plaintiff’s action barred by deed of release and out of time

Catchwords: INSURANCE – indemnity insurance – when cause of action arose – whether cause of action arose at time of occurrence of peril or when insurer failed to do what was required of it under the policy - whether claim out of time; LIMITATIONS – whether claim out of time - with what jurisdiction does transaction have closest connection – whether Northern Territory three year limitation or Victorian or New South Wales six year limitation period applies – whether defendant estopped from asserting three year limitation period applies – whether time should be extended under Limitation Act 1981 (NT); CONTRACT – whether claim barred by deed of release – proper construction of release; ESTOPPEL - whether claim barred by an Anshun estoppel – whether defendant estopped from asserting a three year limitation period
Legislation Cited: Insurance Contracts Act 1983 (Cth)
Limitation Act 1981 (NT)
Cases Cited: Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418
Associated Forest Holdings Pty Ltd v Gordian Runoff Limited [2015] TASFC 6
Bonython v Commonwealth (1950) 81 CLR 486; [1951] AC 201
Bradley v Eagle Star Insurance Co Ltd [1989] AC 957; 1 Lloyd’s Rep 465
Callaghan v Dominion Insurance Co Ltd [1997] 2 Lloyd’s Rep 541
CGU Insurance Ltd v Watson [2007] NSWCA 301
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415
Commonwealth v Vero Insurance Ltd [2012] FCA 826
Commonwealth v Vero Insurance Ltd [2013] FCAFC 152
Doggett v Commonwealth Bank of Australia [2015] VSCA 351
Firma C-Trade SA v Newcastle Protection and Indemnity Association (The Fanti) [1991] 2 AC; [1987] 2 Lloyd’s Rep 299
Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112
In re September 11th Liability Insce Coverage Cases 2004 US Dist LEXIS 3181
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503
O’Neill v Yield House Inc 964 F Supp 806, 810 (SDNY 1997)
Penrith City Council v Government Insurance Office of New South Wales (1991) 24 NSWLR 564
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; 149 CLR 537
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Ltd (No 2) [2012] NSWSC 322
Tillotson v ANZ Life Assurance Co Ltd (1997) 9 ANZ Ins Cas 77,131
Transam Insce Co v Thomas M Durkin & Sons 1991 WL 206765 (ED Pa 1 Oct 1991)
Tropicus Orchids Flowers and Foliage Pty Ltd v Territory Insurance Office (1998) 10 ANZ Ins Cas 61-412
Virk v…

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: [2016] NSWSC 495
Decision Date: 22 April 2016

CaseChat Overview and Summary

Carillion Construction Ltd, a company involved in construction projects, filed a claim against AIG Australia Ltd, an insurance company, seeking indemnity under an insurance policy. The dispute arose from an incident where Carillion was involved in a construction project in the Northern Territory, which resulted in a loss that Carillion believed was covered by the insurance policy issued by AIG. The case was heard by the Supreme Court of Victoria.

The court was required to decide several legal issues. Firstly, it had to determine when the cause of action arose in relation to the indemnity claim. This involved assessing whether the cause of action occurred at the time of the incident or when the insurer failed to fulfill its obligations under the policy. Secondly, the court had to consider the applicable limitation period for the claim. This required identifying the jurisdiction with the closest connection to the transaction and determining whether the Northern Territory's three-year limitation period or the six-year limitation periods of Victoria or New South Wales should apply. Thirdly, the court examined whether AIG was estopped from asserting the three-year limitation period. It also assessed whether the time for bringing the claim should be extended under the Limitation Act 1981 (NT). Additionally, the court had to interpret a deed of release to determine if it barred the claim and whether an Anshun estoppel prevented AIG from asserting the three-year limitation period.

The court found that the cause of action for indemnity arose when AIG failed to fulfill its obligations under the policy, not at the time of the incident. It determined that the Northern Territory had the closest connection to the transaction and, accordingly, the three-year limitation period applied. The court held that AIG was not estopped from asserting the three-year limitation period, and there were no grounds for extending the time for bringing the claim under the Limitation Act 1981 (NT). Furthermore, the court found that the deed of release did not bar the claim and that an Anshun estoppel did not apply to prevent AIG from asserting the three-year limitation period.

As a result, the court dismissed Carillion's claim as it was out of time.

Orders