Hammoud Brothers Pty Ltd v Insurance Australia Ltd

Hammoud Brothers Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the District Court. The dispute concerned a claim made by the appellant under a comprehensive motor vehicle insurance policy for the loss of a vehicle by theft. The policy contained a provision stating that if the vehicle was stolen and not found, the insurer would pay the agreed value.

The primary legal issue before the Court of Appeal was whether the District Court judge erred in finding that the appellant had not satisfied the court that it was not involved in a plan to have the vehicle stolen. This involved considering whether the standard of proof required in such circumstances, particularly in light of the principles established in *Briginshaw v Briginshaw*, necessitated a specific finding of non-involvement in criminal activity by the plaintiff.

The Court of Appeal held that there was no special requirement under *Briginshaw* that a plaintiff alleging a negative (i.e., that they were not involved in a crime) must prove that negative in a way that implies their involvement in a crime if the court declines to find the negative. The court found that the District Court's findings were not to be set aside.

Consequently, the appeal was dismissed with costs.