NEW SOUTH WALES COURT OF APPEAL
CITATION: Vidal v NRMA Insurance Ltd [2005] NSWCA 390
FILE NUMBER(S):
40242 of 2004
HEARING DATE(S): 1 November 2005
JUDGMENT DATE: 15/11/2005
PARTIES:
France Monique Vidal (Appellant)
NRMA Insurance Ltd (Respondent)
JUDGMENT OF: Mason P Handley JA Brownie AJA
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): SC 12177 of 2003
LOWER COURT JUDICIAL OFFICER: Master Harrison
COUNSEL:
C R C Newlinds SC/P T Newton (Appellant)
R W Seton SC (Respondent)
SOLICITORS:
Heidtman & Co (Appellant)
Abbott Tout (Respondent)
CATCHWORDS:
APPEAL – question of law – inconsistent findings – no question of principle
ND
LEGISLATION CITED:
DECISION:
Appeal dismissed with costs
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40242 of 2004
MASON P
HANDLEY JA
BROWNIE AJA15 NOVEMBER 2005
FRANCE MONIQUE VIDAL v NRMA INSURANCE LTD
CATCHWORDS
APPEAL – question of law – inconsistent findings – no question of principle
FACTS
The appellant owned a car which was insured against theft under a policy issued by the respondent. She alleged that the car had been stolen but her claim under the policy was rejected. The Local Court found for the insurer and her appeal to the Supreme Court, limited to a question of law, also failed. On a further appeal by leave the appellant contented that the Magistrate’s decision could not stand because she had made inconsistent findings. HELD: The findings were not inconsistent.
ORDERS
Appeal dismissed with costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40242 of 2004
MASON P
HANDLEY JA
BROWNIE AJA15 NOVEMBER 2005
FRANCE MONIQUE VIDAL v NRMA INSURANCE LTD
Judgment
MASON P: I agree with Handley JA.
HANDLEY JA: This appeal arises from a claim by the appellant under a comprehensive motor vehicle policy for the theft and destruction of her Peugeot car on 20 November 2001. The insurer rejected the claim and the appellant sued on the policy in the Local Court. She was put to proof of the theft, and the insurer also relied on an exclusion clause which denied cover for “loss or damage intentionally caused by you or a person acting with your express or implied consent” and it also alleged that the claim was fraudulent.
The Magistrate rejected the claim and entered judgment for the insurer. An appeal to the Supreme Court, limited to questions of law, was dismissed by Master Harrison. This further appeal was brought with the leave of this Court. It is based on what was alleged to be a serious inconsistency in the Magistrate’s findings. The Magistrate correctly directed herself on the plaintiff’s onus of proof stating (para 2(2)) that she was obliged to prove on the balance of probabilities that her car was stolen otherwise than with her involvement or consent. She also correctly directed herself that the insurer had the onus of proving that the claim was fraudulent.
After a lengthy summary of the plaintiff’s evidence and…
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- Case
- [2005] NSWCA 390
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether there was a question of law arising from inconsistent findings made in the proceedings below, which would warrant appellate intervention. The court was required to determine if the appeal raised a question of principle.
The court's reasoning, as indicated by the catchwords, focused on the nature of the appeal as being solely on a question of law and the presence or absence of inconsistent findings. The court concluded that no question of principle was raised by the appeal. Consequently, the appeal was dismissed.
The appeal was dismissed with costs awarded to the respondent.
Orders
Orders of the court
Appeal dismissed with costs
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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