Trajkovski v Commonwealth Insurance Ltd (No. 2)

District Court

New South Wales

Medium Neutral Citation:

Trajkovski v Commonwealth Insurance Ltd (No. 2) [2020] NSWDC 694

Hearing dates:

2-6 November 2020

Date of orders:

13 November 2020

Decision date:

13 November 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 240

Catchwords:

INSURANCE – home contents policy – whether items of jewellery in a safe stolen from insured address – section 56 of the Insurance Contracts Act 1984 (Cth) - whether fraud on the event – whether fraud on the claim

Legislation Cited:

Evidence Act 1995 (NSW), s 140

Insurance Contracts Act1984 (Cth), ss 54, 56, 60

Cases Cited:

ASIM v Penrose [2010] NSWCA 366

Blacktown City Council v Hocking [2008] NSWCA 144

Briginshaw v Briginshaw (1938) 60 CLR 336

Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246

Insurance Manufacturers of Australia Pty Ltd v Heron (2006) 14 ANZ Ins Cas 61-669

McLennan v Insurance Australia Ltd [2014] NSWCA 300

Palmer v Dolman [2005] NSWCA 361

Sgro v Australian Associated Motor Insurers Ltd [2015] NSWCA 262

TiepThi To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279

Vidal v NRMA Insurance Ltd [2005] NSWCA 390

Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444

Walton v The Colonial Mutual Life Assurance Society Ltd (2004) 13 ANZ Ins Cas 61-620

Water Board v Moustakas (1988) 180 CLR 491

Category:

Principal judgment

Parties:

Mr D Trajkovski (Plaintiff)
Commonwealth Insurance Ltd (Defendant)

Representation:

Counsel:
Mr M Klooster for the plaintiff
Mr R Perla for the defendant

Solicitors:
Unified Lawyers for the plaintiff
Turks Legal for the defendant

File Number(s):

2019/64733

Publication restriction:

Nil

Judgment

INTRODUCTION

1. This case concerns a contested insurance claim in relation to allegedly stolen property. The plaintiff, Mr Trajkovski, and the defendant, Commonwealth Insurance Ltd (the ‘Insurer’), entered into a home contents contract of insurance covering the period 27 September 2012 to 27 September 2013 in respect to Mr Trajkovski’s residential home in an apartment block in an address at Brighton-Le-Sands. It was common ground at the hearing that he paid the premium on that policy. The maximum limit of the cover for general contents was $187,001 and, for specific contents, up to $176,590 in relation to chattels listed in Policy Schedule. One insured event under the policy was theft.

2. According to his evidence, Mr Trajkovski had over many years been an ardent collector of jewellery. Mr Trajkovski alleges that his apartment, which was on the third upper level of the building and which was potentially accessible through entrances to the building at ground level on the left and right sides of the building, was broken into on or around 3 September 2013 and alleges that many items of jewellery he had collected over a lifetime were stolen. He says he had been in Goulburn and Queanbeyan on 2 September 2013, and when he returned to his unit on 3 September 2013 he discovered that there was a significant hole in the ceiling of the main bedroom, which…