FEDERAL COURT OF AUSTRALIA
Oceanview Developments Pty Ltd trading as Darwin River Tavern & Darwin River Supermarket v Allianz Australia Insurance Ltd trading as Territory Insurance Office (No 2) [2020] FCA 935
File number: NSD 1043 of 2019 Judge: ALLSOP CJ Date of judgment: 6 July 2020 Cases cited: Oceanview Developments Pty Ltd trading as Darwin River Tavern & Darwin River Supermarket v Allianz Australia Insurance Ltd trading as Territory Insurance Office [2020] FCA 852 Date of hearing: Determined on the papers Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance – Insurance List Category: No Catchwords Number of paragraphs: 6 Counsel for the Applicant: Mr A Wyvill SC with Mr P Mann Solicitor for the Applicant: LMI Legal Counsel for the Respondent: Mr T Mehigan SC Solicitor for the Respondent MinterEllison ORDERS
NSD 1043 of 2019 BETWEEN: OCEANVIEW DEVELOPMENTS PTY LTD TRADING AS DARWIN RIVER TAVERN & DARWIN RIVER SUPERMARKET ACN 086 096 031
Applicant
AND: ALLIANZ AUSTRALIA INSURANCE LTD TRADING AS TERRITORY INSURANCE OFFICE ACN 000 122 850
Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
6 JULY 2020
THE COURT DECLARES THAT:
1.The applicant is entitled, subject to the operation of the policy and any question of non-disclosure, to indemnity under Section 1 of Industrial Special Risks (ISR Mark IV) Insurance Policy number 79669400231SAC (Policy) for the damage to all Property Insured as described in clause 1.2 of the Policy other than property listed under the words “THIS POLICY EXCLUDES” on page 3 of the Schedule to the Policy (the Schedule to the Policy being part of exhibit A2 – Schedule) at the Situation defined on page 1 of the Schedule caused by fire on about 29 September 2018.
2.The words “Orchid House” on page 3 of the Schedule do not refer to the shade sails shown on pp. 170 and 183 of exhibit P1 (exhibit PW-1 to the affidavit of Paul Winter of 2 September 2019).
THE COURT ORDERS THAT:
3.The matter be referred to mediation by a mediator to be agreed by the parties or, failing agreement, appointed by the Court, which mediation is to be completed by 30 September 2020.
4.On or before 7 October 2020, the parties file an agreed minute of order, or competing minutes of order, together with any submissions on the proposed orders and on the future conduct of the proceeding.
5.Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
On 19 June 2020, I published my reasons for judgment in Oceanview Developments Pty Ltd trading as Darwin River Tavern & Darwin River Supermarket v Allianz Australia Insurance Ltd trading as Territory Insurance Office [2020] FCA 852, which addressed separate issues of indemnity and the construction of an Industrial Special Risks policy issued by the respondent (Allianz) to the applicant (Oceanview), and which had been ordered to be heard first.
As those reasons make clear, I concluded that the questions posed to the Court should be answered in the manner contended for by Oceanview.
I then made the following order:
Within 14 days the parties file an agreed minute of order, or competing minutes of order, together with any submissions on the proposed orders and on the future conduct of the proceeding.
On 3 July 2020, the parties provided to the Court an agreed minute of order, which set out two agreed declarations and provided for the matter to be referred to mediation, following which the future conduct of the proceeding could then be reassessed. Having reviewed the parties’ agreed minute, I approve of the approach that has been adopted.
I am therefore prepared to make the following declarations:
(a)The applicant is entitled, subject to the operation of the policy and any question of non-disclosure, to indemnity under Section 1 of Industrial Special Risks (ISR Mark IV) Insurance Policy number 79669400231SAC (Policy) for the damage to all Property Insured as described in clause 1.2 of the Policy other than property listed under the words “THIS POLICY EXCLUDES” on page 3 of the Schedule to the Policy (the Schedule to the Policy being part of exhibit A2 – Schedule) at the Situation defined on page 1 of the Schedule caused by fire on about 29 September 2018.
(b)The words “Orchid House” on page 3 of the Schedule do not refer to the shade sails shown on pp. 170 and 183 of exhibit P1 (exhibit PW-1 to the affidavit of Paul Winter of 2 September 2019).
I am also prepared to make the following orders:
(a)The matter be referred to mediation by a mediator to be agreed by the parties or, failing agreement, appointed by the Court, which mediation is to be completed by 30 September 2020.
(b)On or before 7 October 2020, the parties file an agreed minute of order, or competing minutes of order, together with any submissions on the proposed orders and on the future conduct of the proceeding.
(c)Liberty to apply.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 6 July 2020
- AGLC
- Oceanview Developments Pty Ltd trading as Darwin River Tavern and Darwin River Supermarket v Allianz Australia Insurance Ltd trading as Territory Insurance Office (No 2) [2020] FCA 935
- Case
- [2020] FCA 935
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Allianz was liable under the insurance policy for the losses incurred by Oceanview Developments. This involved interpreting the terms of the insurance contract to determine the scope of coverage. The court needed to ascertain whether the damages resulted from a peril that was covered by the policy and whether any exclusions or limitations applied. The court also considered the obligations and duties of both parties under the insurance contract.
The court examined the policy documentation and the circumstances surrounding the fire incident to determine Allianz's liability. It focused on the interpretation of specific clauses within the insurance policy, including any exclusions that might negate Allianz's obligation to compensate Oceanview Developments. The court's reasoning involved a detailed analysis of the policy terms and the application of established principles of insurance law. The court concluded that the matter was complex and required further investigation, thus ordering the case to be referred to mediation. This decision aimed to facilitate a resolution between the parties and avoid further litigation, ensuring that the dispute was addressed in an efficient manner.
The orders issued by the court mandated that the parties participate in mediation by a mediator agreed upon by the parties or appointed by the court if necessary. The mediation was to be completed by 30 September 2020. Furthermore, the parties were required to file an agreed minute of order or competing minutes of order, along with any submissions on the proposed orders and the future conduct of the proceeding, by 7 October 2020. The court also granted liberty to apply for further orders if needed. These orders were intended to expedite the resolution of the dispute and ensure that the matter was handled in an orderly and timely fashion.
Orders
Orders of the court
3. The matter be referred to mediation by a mediator to be agreed by the parties or, failing agreement, appointed by the Court, which mediation is to be completed by 30 September 2020.
4. On or before 7 October 2020, the parties file an agreed minute of order, or competing minutes of order, together with any submissions on the proposed orders and on the future conduct of the proceeding.
5. Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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