Elilade Pty Ltd v Nonpareil Pty Ltd - [2002] FCA 909

FEDERAL COURT OF AUSTRALIA
Elilade Pty Ltd v Nonpareil Pty Ltd
[2002] FCA 909
INSURANCE – insurance policy had “flood” exemption – loss caused by water damage being an insured event – loss subsequently caused by flood being an exempted event – extent to which damage caused by insured event recoverable – proximate cause of damage.
INSURANCE – insurance broker – whether insurance broker owed insured duty to advise insured of availability of insurance including flood cover – whether insurance broker owed insured duty to inform insured of flood exemption in policy – whether duty discharged by correspondence requesting insured to check schedule of insurances which clearly identified flood exemption.
Insurance Contracts Act 1984 (Cth), s 57, s 57(2), s 57(3)
Consumer Affairs and Fair Trading Act (NT), s 42, s 44(e)
Trade Practices Act 1974 (Cth), s 52(1)
Insurance (Agents and Brokers) Act 1984 (Cth), s 13(1)(b)
Insurance Contract Regulations 1985 (Cth), reg 32
Financial Laws Amendment Act 1997 (Cth)
Federal Court of Australia Act 1976
Pye v Metropolitan Coal Co. Ltd (1934) 50 CLR 614
Wayne Tank & Pump Co. Ltd v Employers Liability Assurance Corp. Ltd [1974] Q.B. 57
Gold Coast Bakeries (Qld) Pty Ltd v Heat & Control Pty Ltd [1992] 1 Qd R 162
City Centre Cold Store Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) NSWLR 739
Leyland Shipping Co. Ltd v Norwich Union Fire Insurance Society Ltd [1918] AC 350
National & General Insurance Co. Ltd v Chick [1984] 2 NSWLR 86
Moore v Evans [1918] AC 185
Countrywide Finance Ltd v State Insurance Ltd [1993] NZLR 745
Cory v Burr (1883) 8 App Cas 393
Thompson v Mastertouch TV Service Pty Ltd (No.1) (1997) 29 FLR 270
James v ANZ Banking Group Ltd (1986) 64 ALR 347
SWF Hoists and Industrial Equipment Pty Ltd v State Government Insurance Commission (1990) 12 ATPR 41-45
Caparo Industries plc v Dickman [1990] 2 AC 605
Lewis v Tressider Andrews Associates Pty Ltd [1987] 2 Qd R 533
Mitor Investments Pty Ltd v General Accident Fire and Life Insurance Corp. Ltd [1984] WAR 365
Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541
Dickson v Devitt [1917] 86 LJKB 315
Astley v Austrust Ltd (1999) 197 CLR 1
Fine’s Flowers Ltd v General Accident Assurance Co. of Canada (1977) 81 DLR 3d 139
Rocco Pezzano Pty Ltd v Unity Insurance Brokers Pty Ltd (1995) 8 ANZ Ins Cas 61-288
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603
Fire & All Risks Insurance v Caratti (Bulfinch) Pty Ltd [1969] WAR 49
Craine v Colonial Mutual Insurance Ltd (1920) 28 CLR 305
Lake v Harford Fire Insurance Co. Ltd [1996] WAR 161
Re Mining Technologies Australia Pty Ltd [1999] 1 Qd R 60
Settlement Wine Co. Pty Ltd v National & General Insurance Co. Ltd (1994) 62 SASR 40
ELILADE PTY LTD (ACN 073 980 800) v NONPAREIL PTY LTD (ACN 009…

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: [2002] FCA 909
Decision Date: 31 JULY 2002

CaseChat Overview and Summary

Elilade Pty Ltd sought relief from Nonpareil Pty Ltd and another party in relation to a claim under an insurance policy. The dispute was heard in the Federal Court of Australia. The applicant alleged that the respondents had failed to pay out on a claim under an insurance policy, and sought damages, interest, and other relief. The court was required to determine whether the respondents had breached the insurance contract and whether the applicant was entitled to the relief sought.

The court considered the terms of the insurance contract and whether the respondents had breached it by failing to pay out on the claim. The court found that the respondents had breached the contract and were liable to pay the applicant damages and interest. The court rejected the applicant’s claim against the other respondent, finding that there was no evidence to support a breach of contract on their part. The court ordered that judgment be entered in favour of the applicant against the second respondent in the sum of $238,605, with interest under s 57 of the Insurance Contracts Act 1984 (Cth) from 1 January 1999. The applicant’s claim against the first respondent was dismissed.

Orders

Orders of the court

1. Judgment be entered in favour of the applicant against the second respondent in the sum of $238,605.

2. The second respondent pay to the applicant interest on the judgment sum of $238,605 under s 57 of the Insurance Contracts Act 1984 (Cth) from 1 January 1999.

3. The applicant’s claim against the first respondent be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MANSFIELD J

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Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

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