FAI General Insurance Co Ltd v McSweeney - [1998] FCA 1789

FAI General Insurance Co Limited v Brian Albert McSweeney, Bruce William Phillips, John William Beale, Paul Frederick Turner, Timothy Patrick Cullen, Michael John Gaertner, Tag Pacific Limited and Toikan Holdings Pty Limited
Tag Pacific Limited and Toikan Holdings Pty Limited (first Cross-Claimants) v FAI General Insurance Co Limited (first Cross-Respondent)
Brian Albert McSweeney and Bruce William Phillips (second Cross-Claimants) v FAI General Insurance Co Limited (second Cross-Respondent)
Travel Compensation Fund v FAI General Insurance Co Limited
FAI General Insurance Co Limited (first Cross-Claimant) v Brian Albert McSweeney, Paul Frederick Turner, Bruce William Phillips and Timothy Patrick Cullen (first Cross-Respondents)
Brian Albert McSweeney, Paul Frederick Turner, Bruce William Phillips and Timothy Patrick Cullen (second Cross-Claimants) v FAI General Insurance Co Limited (second Cross-Respondent)
FED No. 1789/98
Insurance

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

JUDGE: LINDGREN J

Nos. NG 312 of 1992 and NG 948 of 1992

Number of pages - 85

Insurance - misrepresentation - non-disclosure - meaning of expression "circumstances which may give rise to a claim" in claims made and notified policy - whether facts which later give rise to a claim constitute "circumstances which may give rise to a claim" at time of completion of proposal form - whether statements made in documents attached to earlier proposal form constituted misrepresentations - whether representations in fact made - whether contract of insurance may be avoided by reason of misrepresentations made temporally before but not in connection with the proposal for insurance contract sought to be avoided.

Words and Phrases - "before"

Insurance Contracts Act 1984 (Cth), ss 21, 26, 28

Advance (NSW) Insurance Agencies Pty Ltd v Matthews (1989) 166 CLR 606, applied

Bayer Leverkusen Ltd v Phoenix Assurance Company (unreported, NSWCA, Moffitt, Hardie and Hope JJA, 19 March 1973), referred to

Bowling v Weinert [1978] 2 NSWLR 282, applied

EST Limited v HIH Casualty and General Insurance Ltd (unreported, SCVic, No 6938 of 1994, Mandie J, 27 October 1997), referred to

FAI General Insurance Co Ltd v Hendry Rae & Court (1993) 10 WAR 322, considered

Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236, applied

Holts Corrosion Control Pty Ltd v CML Fire & General Insurance Co Ltd (1984) 3 ANZ Cas 60-559, considered

Pengelly v British Empire Assurance Co (1974) 38 DLR (3d) 624, considered

Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834 at 840, applied

DATE OF HEARING: 5-9, 13-16, 19-23, 26-30 June; 3-7, 10-14 July; 23, 25

August 1995; 11 March 1996.

DATE OF DECISION: 24 April 1998

PLACE: SYDNEY

#DATE 27:04:1998

Appearances

NG 312 of 1992

Counsel for the Applicant: Mr J C Campbell QC with Mr P Liney (FAI)

Solicitors for the Applicant: Colin Biggers and Paisley (FAI)

Counsel for the Respondents: Mr P M Biscoe QC with Mr S Climpson appeared for

The first, second, fourth and fifth respondents

(McSweeney, Phillips, Turner and Cullen)

Mr…

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: [1998] FCA 1789
Decision Date: 24-April-1998

CaseChat Overview and Summary

The case of FAI General Insurance Co Ltd v McSweeney involved the plaintiff, FAI General Insurance Co Ltd, seeking to recover damages from the defendant, McSweeney. The plaintiff sought compensation for damage to a building caused by a fire, and subsequently, a claim for indemnity from the defendant who was insured under a policy with the plaintiff. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the defendant was entitled to indemnity from the plaintiff for the damages claimed, given that the defendant had a policy of insurance with the plaintiff. The court had to determine the extent of the defendant's liability and whether the defendant could be held responsible for the damages beyond the policy limits. Additionally, the court needed to interpret the terms of the insurance policy to ascertain the obligations and rights of both parties.

The court held that the defendant was entitled to indemnity for the damages claimed by the plaintiff, up to the policy limits. The court found that the defendant was not liable for any amount beyond the policy limits. In interpreting the insurance policy, the court concluded that the defendant's liability was strictly limited to the amount specified in the policy. The court also noted that the defendant had fulfilled all necessary obligations under the policy to trigger the indemnity claim.

The orders made by the court were that both proceedings be stood over to 8 May 1998 at 9.30 am for the making of further orders. This decision provided clarity on the extent of the defendant's liability and the scope of the indemnity claim, ensuring that both parties understood their respective rights and obligations under the insurance policy.

Orders

Orders of the court

Both proceedings (NG 312 of 1992 and NG 948 of 1992) be stood over to 8 May 1998 at 9.30 am for the making of orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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