Rolleston v Insurance Australia Ltd

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Rolleston v Insurance Australia Ltd [2017] NSWCA 168

Hearing dates:

9 June 2017

Date of orders:

12 July 2017

Decision date:

12 July 2017

Before:

Beazley P at [1];
Meagher JA at [2];
Emmett AJA at [7]

Decision:

(1) The notice of appeal filed on 30 November 2016 be dismissed.
(2) The appellant pay the respondent’s costs.

Catchwords:

EVIDENCE — Opinion evidence — Exceptions — Expert opinion – whether valuation report disclosed valuer’s reasoning process — whether valuation report disclosed how the valuer’s assessment was based on the application of specialised knowledge to the facts

 

EVIDENCE — Discretions — Exclusion of evidence — Civil proceedings — whether primary judge erred in the exercise of discretion

  APPEAL AND NEW TRIAL — Appeal — General principles — whether any utility in remittal for further hearing

Legislation Cited:

Evidence Act 1995 (NSW), ss 76, 79, 135
Insurance Contracts Act 1984 (Cth), s 56

Cases Cited:

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; [2007] FCAFC 70
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Makita(Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146; [2000] FCA 1463

Texts Cited:

Nil

Category:

Principal judgment

Parties:

John Phillip Rolleston (Appellant)
Insurance Australia Ltd (Respondent)

Representation:

Counsel:
A Greinke with W Wild (Appellant)
G Carolan (Respondent)

  Solicitors:
Lodhia Lawyers (Appellant)
MCK Lawyers (Respondent)

File Number(s):

2016/358869

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2016] NSWSC 1561

Date of Decision:

4 November 2016

Before:

McDougall J

File Number(s):

2014/173897

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr John Rolleston owned property and was constructing a residence (the Property) on it. He entered into a contract for insurance with Insurance Australia Ltd in respect of the Property. The Property was insured against fire for an agreed sum of $4.2 million. On 10 May 2013, the Property was damaged by fire. The cost of repair was agreed to be $991,946. Mr Rolleston made a claim under the insurance policy which was refused. On 27 February 2014 the Property was sold in its damaged state for $4,068,000.

Mr Rolleston commenced proceedings against Insurance Australia, seeking loss and damage arising from fire damage to the Property that adversely affected its market value. The primary judge found that Insurance Australia was liable under the insurance policy.

Mr Rolleston claimed an amount equal to the difference between the price that the Property sold for in its damaged state on 27 February 2014, and the amount that it would have sold for on that date, had the Property been repaired. He tendered a valuation report (the Report) which assessed the value of the Property at $7.5 million as at the date of sale…