Matton Developments Pty Ltd v CGU Insurance Limited - [2014] QSC 256

SUPREME COURT OF QUEENSLAND

CITATION:

Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256

PARTIES:

MATTON DEVELOPMENTS PTY LTD
ACN 100 028 340
(plaintiff)
v
CGU INSURANCE LIMITED

ACN 004 478 371
(defendant)

FILE NO:

SC No 1704 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

16 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2014

JUDGE:

Flanagan J

ORDER:

1. Pursuant to r 478 of the Uniform Civil Procedure Rules 1999 (Qld) at the trial of this proceeding the court shall:

(a)   inspect a Liebherr LTR1100 telescopic crawler crane (the crane) at the premises of Casa Engineering (Brisbane) Pty Ltd;

(b)   witness a demonstration of the basic manoeuvring capabilities of the crane; and

(c)    inspect a concrete tilt panel of identical specifications as the panel described as ‘panel 30’ in the defence.

2.   The plaintiff shall organise and pay any costs and provide any indemnities to Casa Engineering (Brisbane) Pty Ltd concerning the inspection and demonstration in order 1.

3.   Direct that the demonstration contemplated by order 1(b) be videoed and that the video be tendered as evidence in the proceedings.

CATCHWORDS:

EVIDENCE – GENERAL – INSPECTION – where the plaintiff was the lessee/owner of a crane – where the boom of the crane collapsed – where the plaintiff and the defendant had entered into a policy of insurance – where the plaintiff claimed, but was denied, indemnity under the insurance policy – where there exists a factual dispute between the parties as to how and where the crane was being operated when the boom collapsed – where the plaintiff applies for an inspection of a similar crane and its load – where the plaintiff applies for a demonstration of a similar crane’s manoeuvring capabilities and also the operation of a similar crane in manner alleged by the plaintiff – where the plaintiff applies for anything observed by the court during any inspection and/or demonstration to be received as evidence – whether any inspection and/or demonstration ought to be granted – whether any inspection and/or demonstration ought to be received as evidence – whether the demonstration ought to occur in circumstances where there is a factual dispute over how the incident occurred

Uniform Civil Procedure Rules 1999 (Qld), r 478

Avis v Mark Bain Constructions Pty Ltd [2011] QSC 80, cited
Buckingham v Daily News Ltd [1956] 2 QB 534, applied
Evans v The Queen (2007) 235 CLR 521, considered
Scott v Nurmukah Corporation (1954) 91 CLR 300, considered

Tito v Waddell [1975] 1 WLR 1303, considered

COUNSEL:

D Cooper QC, with A F Messina, for the plaintiff

G A Thompson QC for the defendant

SOLICITORS:

Warlow Scott Lawyers for the plaintiff

Barry.Nilsson Lawyers for the defendant

Introduction

By application filed 10 October 2014, the plaintiff applies for the following orders:

“1.Pursuant to r. 478 of the Uniform Civil Procedure Rules 1999 (Qld)(the UCPR) at the trial of this proceeding the court shall:
a)inspect a Liebherr LTR1100 telescopic…

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: [2014] QSC 256
Decision Date: 16 October 2014

CaseChat Overview and Summary

The case of Matton Developments Pty Ltd v CGU Insurance Limited involved a dispute between the plaintiff, a lessee and owner of a crane, and the defendant, their insurer. The plaintiff claimed indemnity under an insurance policy after the boom of the crane collapsed. However, the defendant denied the claim. The primary dispute centred around the circumstances of the collapse, specifically how and where the crane was being operated at the time. The plaintiff sought an inspection of a similar crane and its load, a demonstration of the crane's manoeuvring capabilities, and an operation of the crane as alleged by the plaintiff. The plaintiff also sought for any observations made by the court during the inspection or demonstration to be admitted as evidence.

The court was required to decide whether an inspection and/or demonstration should be granted and, if so, whether the observations made during these processes should be admitted as evidence. Additionally, the court had to determine whether the demonstration should proceed given the factual dispute over how the incident occurred. The court's decision hinged on the balance between the need for the court to have a comprehensive understanding of the events in question and the potential prejudice that might arise from allowing the inspection and demonstration in the context of a factual dispute.

The court ruled that an inspection of a similar crane and a demonstration of its manoeuvring capabilities were necessary to assist in understanding the circumstances of the collapse. The court accepted that the observations made during the inspection and demonstration could be admitted as evidence. However, the court directed that the demonstration be videoed to ensure that the evidence was properly preserved and could be reviewed by all parties. The court also ordered that the plaintiff bear the costs and provide any necessary indemnities to the party facilitating the inspection and demonstration.

Orders

Orders of the court

1. Pursuant to r 478 of the Uniform Civil Procedure Rules 1999 (Qld) at the trial of this proceeding the court shall:

(a) inspect a Liebherr LTR1100 telescopic crawler crane (the crane) at the premises of Casa Engineering (Brisbane) Pty Ltd;

(b) witness a demonstration of the basic manoeuvring capabilities of the crane; and

2. The plaintiff shall organise and pay any costs and provide any indemnities to Casa Engineering (Brisbane) Pty Ltd concerning the inspection and demonstration in order 1.

3. Direct that the demonstration contemplated by order 1(b) be videoed and that the video be tendered as evidence in the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256
PARTIES:	MATTON DEVELOPMENTS PTY LTD ACN 100 028 340 (plaintiff) v CGU INSURANCE LIMITED ACN 004 478 371 (defendant)
FILE NO:	SC No 1704 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	16 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	14 October 2014
JUDGE:	Flanagan J
ORDER:	*1. Pursuant to r 478 of the Uniform Civil Procedure Rules* 1999 (Qld) at the trial of this proceeding the court shall: (a) inspect a Liebherr LTR1100 telescopic crawler crane (the crane) at the premises of Casa Engineering (Brisbane) Pty Ltd; (b) witness a demonstration of the basic manoeuvring capabilities of the crane; and (c) inspect a concrete tilt panel of identical specifications as the panel described as ‘panel 30’ in the defence. 2. The plaintiff shall organise and pay any costs and provide any indemnities to Casa Engineering (Brisbane) Pty Ltd concerning the inspection and demonstration in order 1. 3. Direct that the demonstration contemplated by order 1(b) be videoed and that the video be tendered as evidence in the proceedings.**
CATCHWORDS:	EVIDENCE – GENERAL – INSPECTION – where the plaintiff was the lessee/owner of a crane – where the boom of the crane collapsed – where the plaintiff and the defendant had entered into a policy of insurance – where the plaintiff claimed, but was denied, indemnity under the insurance policy – where there exists a factual dispute between the parties as to how and where the crane was being operated when the boom collapsed – where the plaintiff applies for an inspection of a similar crane and its load – where the plaintiff applies for a demonstration of a similar crane’s manoeuvring capabilities and also the operation of a similar crane in manner alleged by the plaintiff – where the plaintiff applies for anything observed by the court during any inspection and/or demonstration to be received as evidence – whether any inspection and/or demonstration ought to be granted – whether any inspection and/or demonstration ought to be received as evidence – whether the demonstration ought to occur in circumstances where there is a factual dispute over how the incident occurred Uniform Civil Procedure Rules 1999 (Qld), r 478 Avis v Mark Bain Constructions Pty Ltd [2011] QSC 80, cited Buckingham v Daily News Ltd [1956] 2 QB 534, applied Evans v The Queen (2007) 235 CLR 521, considered Scott v Nurmukah Corporation (1954) 91 CLR 300, considered Tito v Waddell [1975] 1 WLR 1303, considered
COUNSEL:	D Cooper QC, with A F Messina, for the plaintiff G A Thompson QC for the defendant
SOLICITORS:	Warlow Scott Lawyers for the plaintiff Barry.Nilsson Lawyers for the defendant