Stapleton v NTI Limited

DISTRICT COURT OF QUEENSLAND

CITATION:

Stapleton & Anor v NTI Limited [2002] QDC 204

PARTIES:

GARY STAPLETON  First Plaintiff
and
HEATHER NOELENE STAPLETON      Second Plaintiff

v

NTI LIMITED ACN 000 746 109  Defendant

FILE NO/S:

D5883 OF 2001

DIVISION:

PROCEEDING:

Determination of separate question

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

25 July 2002

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2002

JUDGE:

McGill DCJ

ORDER:

1. That the question of whether, on the facts agreed between the plaintiffs and the defendant, s 54 of the Insurance Contracts Act 1984 (Cth) applies so that the defendant may not refuse to pay the plaintiffs’ claim, be decided in advance of deciding the other questions of the proceeding.

2.  That question be heard and determined forthwith.

3.  That question be answered:  “No”.

CATCHWORDS:

INSURANCE – Insurance Contracts Act – motor vehicle insurance – policy limited cover to journeys within particular area – whether relief available under Act if insurer refused claim because vehicle being used on journey outside that area Insurance Contracts Act 1984 (Cth) s 54(1) FAI General Insurance Co Ltd v Australian Hospital Care Pty Ltd (2001) 204 CLR 641 – applied

COUNSEL:

K F Holyoak for the plaintiffs  B D O’Donnell QC for the defendant

SOLICITORS:

Barry & Nilssen for the plaintiffs  McCullough Robertson for the defendants

1. The plaintiffs were at the relevant time the owner of a 1989 Ford LTL Prime Mover which was within a motor vehicle insurance policy issued to them by the defendant.  On 31 August 2001 the prime mover was damaged in a road accident on the Mt Lindsay Highway near Beaudesert during a journey to Sydney, as a result of which the plaintiffs have suffered loss.  The plaintiffs made a claim on their insurance policy which was rejected by the defendant.

1. On 11 December 2001 the plaintiffs commenced proceedings in this court seeking $77,050 together with $1,500 per week as a continuing loss until judgment as money payable under the policy. In its defence filed 17 January 2002 the defendant alleged, inter alia, that the plaintiffs’ prime mover was not covered by the contract of insurance because at the time of the loss the prime mover was travelling on a journey of which the destination was beyond a 450 kilometre radius from the plaintiffs’ home base, at Jimboomba in Queensland. In the reply filed 18 February 2002, the plaintiffs alleged that on its true construction the insuring clause of the policy covered the prime mover, and although it was being operated on a journey where its destination was in excess of the territorial limit, that could not reasonably be regarded as capable of causing or contributing to the loss in respect of which insurance cover was provided by the policy, and no part of the loss that gave rise to the claim under the policy was caused by that fact, so by s54 of the Insurance Contracts Act 1984 the defendant did not have the right to refuse the claim.

1. By an application…