Insurance Australia Ltd t/as NRMA Insurance v El Kabbout

Insurance Australia Ltd trading as NRMA Insurance (the applicant insurer) sought leave to appeal a decision of a lower court that found it liable to pay a claim made by Mr El Kabbout (the respondent) in respect of a motor vehicle that was written off after colliding with a tree. The insurer sought to avoid the policy on the basis that the respondent had failed to be truthful and frank in relation to the claim.

The primary legal issues before the Court of Appeal were whether the trial judge had reversed the onus of proof, whether the trial judge had misstated one aspect of the expert evidence presented, and whether these, or any other arguable errors, warranted appellate intervention to avoid injustice. The insurer contended that expert evidence suggested the accident could not have occurred in the manner described by the respondent.

McColl and Macfarlan JJA considered whether the applicant had established an arguable error requiring correction. The Court concluded that the grounds of appeal did not demonstrate an arguable error of law or fact that would warrant appellate intervention. The application for leave to appeal was therefore dismissed.

The application for leave to appeal was dismissed with costs.