Ghamrawi & v GIO General Ltd - [2005] NSWCA 467

NEW SOUTH WALES COURT OF APPEAL

CITATION: Ghamrawi & Anor v GIO General Ltd [2005] NSWCA 467

FILE NUMBER(S):
40214/05

HEARING DATE(S): 16 December 2005

JUDGMENT DATE: 16/12/2005

PARTIES:
Rabia Ghamrawi - First Appellant
Nazzarena Sant - Second Appeallant
GIO General Ltd - Respondent

JUDGMENT OF: Giles JA Ipp JA Brownie AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2057/03

LOWER COURT JUDICIAL OFFICER: Balla DCJ

COUNSEL:
W P Lowe & A D Gibbons - Appellants
C Moschoudis - Respondent

SOLICITORS:
Andresakis & Associates, Parramatta - Appellants
Jones King Lawyers - Respondent

CATCHWORDS:
Insurance - whether prior refusal of claim disclosed when taking out insurance - whether client legal privilege in counsel's advice recording knowledge of prior refusal had been lost - whether erroneous preference for evidence of insurer's practice and computer record over oral evidence of insured - whether error in fact-finding as to receipt of document from insurer - depends on facts. ND

LEGISLATION CITED:

DECISION:
(1) Grant leave to appeal, notice of appeal already filed to stand as the notice of appeal; (2) Appeal dismissed; (3) Appellants pay respondent's costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40214/05
DC 2057/03
GILES JA
IPP JA
BROWNIE AJA
Friday 16 December 2005

GHAMRAWI & ANOR v GIO GENERAL LIMITED

Judgment

GILES JA: Mr and Mrs Ghamrawi owned an investment property at Blacktown. In February 2001 Mrs Ghamrawi took insurance on their behalf with GIO General Ltd (“GIO”). She took it out over the telephone, dealing with Mr Balcombe of GIO.
In May and June 2001 the property was damaged by fire. The Ghamrawis claimed under the insurance. GIO declined to pay on the ground that there had not been disclosed to it that a prior insurance claim by Mr Ghamrawi upon NRMA Insurance Ltd (“NRMA”) had been refused.
The judge found, contrary to Mrs Ghamrawi’s evidence, that the NRMA refusal had not been disclosed to GIO. GIO did not press a case of fraudulent non-disclosure, but her Honour upheld its submissions that it had cancelled the insurance for non-disclosure, pursuant to s 60(1)(b) of the Insurance Contracts Act 1984 (“the Act”), and that its liability was reduced to nil by reason of the non-disclosure, pursuant to s 28(3) of the Act.
The Ghamrawis did not have an appeal as of right, leave to appeal being required if the amount at stake was less than $100,000 (Supreme Court Act, 1970, s 101(2)(r)). No affidavit stating facts showing that this restriction did not apply was filed (Supreme Court Rules Pt 51 r 8), and counsel for the Ghamrawis was unable to demonstrate from the appeal papers that more than $100,000 was at stake. GIO did not apply to have the appeal struck out as incompetent. There was regrettable failure to appreciate the leave requirement. Application for leave to appeal was made orally; in my opinion the appeal should be dismissed, and I am prepared to grant leave to appeal…

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 Ghamrawi & v GIO General Ltd

Details

AGLC: Ghamrawi and v GIO General Ltd [2005] NSWCA 467
Case: [2005] NSWCA 467
Decision Date: 16 December 2005

CaseChat Overview and Summary

The appeal concerned a dispute between Mr Ghamrawi and GIO General Ltd regarding an insurance policy. Mr Ghamrawi sought to recover under a policy of insurance, but GIO denied liability. The primary dispute revolved around whether Mr Ghamrawi had disclosed a prior refusal of an insurance claim when he applied for the policy in question. The case was heard by the Court of Appeal of New South Wales.

The Court of Appeal was required to determine several key legal issues. These included whether Mr Ghamrawi had a duty to disclose the prior refusal to GIO, whether client legal privilege in counsel's advice, which recorded knowledge of the prior refusal, had been lost, and whether the primary judge had made an error in preferring evidence of the insurer's practice and computer records over Mr Ghamrawi's oral evidence. The court also considered whether there was an error in fact-finding regarding the receipt of a document from the insurer.

In its reasoning, the Court of Appeal found that Mr Ghamrawi had failed to disclose the prior refusal of his insurance claim, which was a material fact that ought to have been disclosed. The court determined that the advice from counsel, which might have indicated knowledge of the prior refusal, was not protected by client legal privilege in the circumstances. Furthermore, the court held that the primary judge had not erred in preferring the documentary evidence of the insurer's practice and computer records over Mr Ghamrawi's oral testimony, as this was a matter of fact-finding within the primary judge's purview.

The Court of Appeal granted leave to appeal, and the filed notice of appeal was to stand as the formal notice of appeal. However, the appeal itself was dismissed, and the appellants were ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Grant leave to appeal, notice of appeal already filed to stand as the notice of appeal; (2) Appeal dismissed; (3) Appellants pay respondent's costs.

Background

Background to the litigation

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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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