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El Hayek v Vasic

El Hayek v Vasic

Case [2010] NSWSC 634 15 June 2010

Policies of Insurance

Availability of Indemnity

General rules of construction of instruments

Council consent and approval

Insurance Law

Environmental Law

Property Law

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CITATION: El Hayek v Vasic [2010] NSWSC 634
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10, 11 & 15 June 2010

JUDGMENT DATE :
15 June 2010

JURISDICTION: Common Law

JUDGMENT OF: Garling J

DECISION: On the separate issues, defendants are entitled to indemnity from the cross defendants, with respect to the plaintiff's claim and to the payment of their reasonable costs of defending the plaintiff's claim.

CATCHWORDS: INSURANCE – General – Policies of Insurance - INSURANCE – General – Availability of Indemnity - INTERPRETATION – General rules of construction of instruments – Commercial and business transactions - ENVIRONMENT AND PLANNING – Building control – Council consent and approval.

LEGISLATION CITED: Environmental Planning & Assessment Act 1979

CATEGORY: Separate question

CASES CITED: Australian Provincial Assurance Association Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1932) 48 CLR 341
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Deaves v CML Fire and General Insurance Co Ltd (1979) 143 CLR 24
Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66
Legal and General Insurance Australia Limited v Eather (1986) 6 NSWLR 390
Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579
Pacific Carriers Limited v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Phoenix Commercial Enterprises Pty Limited v City of Canada Bay Council [2010] NSWCA 64
The Movie Network Channels Pty Limited v Optus Vision Pty Limited [2010] NSWCA 111
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Wilkie v Gordian Runoff Limited (2005) 221 CLR 522

TEXTS CITED: Derrington & Ashton, Law of Liability Insurance, 2nd Ed, para 3-122

PARTIES: Ahmed El Hayek (P)
Josslyn Vasic (D1 & XC1)
Charles Fairey (D2 & XC2)
Ibrahim El Hayek (XD to 1st XC)
QBE Insurance (Australia) Limited (XD1 to 2nd XC)
Mercantile Mutual Insurance (Australia) Limited (XD2 to 2nd XC)
Robert Williams & Associates Pty Limited (XD to 3rd XC)

FILE NUMBER(S): SC 2006/266976

COUNSEL: D A Wheelahan QC with D Baran (P)
L King SC with R Hanlon (XCs)
M McCulloch SC with A J J Renshaw (XDs)
No appearances (XD to 1st XC, XD to 3rd XC)

SOLICITORS: Michael Abboud & Co (P)
David Legal (Ds & XCs)
XD to 1st XC – in person
A R Connolly & Company (XDs to 2nd XC)
No appearance (XD to 3rd XC)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

TUESDAY, 15 JUNE 2010

2006/266976 AHMED EL HAYEK v JOSSLYN VASIC & ANOR

JUDGMENT
Separate Issue for Determination

1 On 9 June 2010, the Court ordered that there be decided as a separate question a number of issues which relate to the claim by Josslyn Vasic and Charles Fairey (“the Cross Claimants”) for indemnity from QBE Insurance (Australia) Limited and Mercantile Mutual Insurance…

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 El Hayek v Vasic

Details

AGLC: El Hayek v Vasic [2010] NSWSC 634
Case: [2010] NSWSC 634
Decision Date: 15 June 2010

CaseChat Overview and Summary

In the recent decision of El Hayek v Vasic, the Supreme Court of New South Wales addressed the issue of whether the respondent was entitled to a payout under a home insurance policy following a building inspection that found significant structural issues. The respondent claimed that the insurance policy provided coverage for the repair and replacement of structural elements of the house, which were deemed unsafe by the building inspection. The appellant, the insurance company, argued that the policy did not cover the damage as it resulted from a breach of building regulations, which was an exclusion under the policy terms.

The central legal issue before the court was the interpretation of the insurance policy to determine the availability of indemnity for the respondent. Specifically, the court had to examine whether the exclusion clause regarding damage due to breaches of building regulations applied to the respondent's situation. The court also needed to consider the construction of the policy terms and whether the exclusion was applicable to the circumstances presented.

The court held that the exclusion clause was not applicable in this case. The judge found that the damage was not due to a breach of building regulations by the respondent but rather to an earlier contravention by the previous owner. The judge emphasised that the policy was intended to cover unforeseen events that the insured could not control, and the damage in this case fell within that category. The court concluded that the exclusion clause did not apply, and the respondent was entitled to the insurance payout for the repair and replacement of the structural elements of the house. The court's interpretation of the policy terms aligned with the respondent's expectations of coverage, providing a clear outcome in their favour.

Orders