Vidal v NRMA Insurance Ltd

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 AJA

15 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 AJA

15 NOVEMBER 2005

FRANCE MONIQUE VIDAL v NRMA INSURANCE LTD

Judgment

1. MASON P:  I agree with Handley JA.

2. 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.

3. 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. 

4. After a lengthy summary of the plaintiff’s evidence and…