Suncorp Insurance & Finance v Hill - [1997] QCA 362

[1997]QCA 362

COURT OF APPEAL

PINCUS JA
MOYNIHAN J

AMBROSE J

Appeal No 2029 of 1997

SUNCORP INSURANCE AND FINANCE	Appellant
and
GLYNN ROBERT HILL	Respondent
BRISBANE

..DATE 22/09/97
PINCUS JA: There was an application before the Court for a stay of execution in respect of a

judgment given by the District Court on 6 February 1997. The judgment was given in an action

brought on a fire insurance policy and the principal dispute before the primary judge related to the

question of whether or not, as was asserted on behalf of the insurance company, now the applicant,

the plaintiff, now the respondent, had himself started the fire. The primary judge concluded that the

insurer had not proved that the plaintiff intentionally lit the fire and therefore the action succeeded.

Another issue before the primary judge was the question of a claim for compensation in respect of a

lost commercial opportunity.

The first thing which is necessary to consider, and that can be done briefly, is whether the appeal has

any substance. One might expect that it could be difficult for the applicant, as appellant, to displace

the judge's conclusion on the question of credit. But, on the other hand, not having the full facts of

the matter before us, as we typically do not in these cases, one could not say that that task would be

impossible.

Therefore, in my view, the appeal should be approached on the basis that it probably has some

substance.

The second question is whether or not the plaintiff/respondent would, if the appeal succeeded, be

able to repay the sum in question; on that issue it is not necessary to go into detail, because it is not

seriously contended that the plaintiff/respondent would be able to repay the money if it was simply

paid over to him now. The sum is of the order of $140,000 and he is a man without much financial

substance.

The question therefore becomes whether or not an offer which was put by Messrs Goodfellow and

Scott, solicitors, in a letter dated June 17, 1997, should have been accepted by the applicant. It seems to me unnecessary to set out the full terms of that offer; in substance, it contemplates that the

costs of the action will be paid together with the amount of the judgment, that the property on which

the destroyed building was situated will be cleared of mortgages by payment out of a mortgage debt

and that there will be a consent caveat to protect the position of the applicant. Apart from paying

out the costs and the mortgage on the property, said to be in the vicinity of $90,000, the solicitors

propose that, subject to some supervision by them, a building will be erected on the property while

the appeal is pending. The relevant paragraph says:

"Our client will organise a builder to re-construct the premises. We will supervise payments
to that builder. We will undertake not to pay anything to the builder except after…

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: [1997] QCA 362
Decision Date: 22/09/1997

CaseChat Overview and Summary

The Court of Appeal was presented with an application by Suncorp Insurance & Finance, the appellant, for a stay of execution in relation to a judgment given by the District Court on 6 February 1997. The judgment was derived from an action brought on a fire insurance policy, with the principal dispute being whether the plaintiff, now the respondent, had intentionally started the fire. The primary judge determined that the insurer had not proven this assertion, resulting in the plaintiff's successful action. Another issue was the claim for compensation concerning a lost commercial opportunity.

The appeal raised two main legal issues: first, whether the appeal had any substance, considering the difficulty in displacing the judge's conclusion on the question of credit; and second, whether the respondent could repay the sum in question if the appeal succeeded. Given the respondent's limited financial resources, it was apparent that repayment would be improbable. The court considered an offer made by the respondent's solicitors, proposing that the costs of the action and the judgment amount be paid, the property be cleared of mortgages, and a building erected on the property pending the appeal. While the proposal had some attractions, it was deemed complex and unlikely to significantly benefit the respondent, potentially leading to further disputes.

The Court of Appeal, after careful consideration, decided to reject the respondent's proposal. Instead, they granted the stay of execution sought by the appellant, as it seemed more appropriate under the circumstances. The court determined that the costs of the application for a stay should be costs in the appeal, meaning the party prevailing in the appeal would receive the costs of the application. Both Moynihan J and Ambrose J concurred with Pincus JA's decision.

Orders