Voitenko v Zurich Australian Insurance Ltd - [2019] NSWCA 229

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229
Hearing dates: 13 September 2019
Decision date: 16 September 2019
Before: Meagher JA; McCallum JA
Decision:
Summons for leave to appeal dismissed with costs

Catchwords: CIVIL PROCEDURE – application for leave to appeal from decision granting leave to amend defence – insurance dispute – claim in respect of property damaged by fire – belated application by insurer to plead arson – no reference in primary judgment to part 6 of Civil Procedure Act – whether primary judge erred in failing to have regard to presumptive prejudice – whether primary judge erred in his approach to the defendant’s explanation for the delay in bringing the application
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59
Court Procedures Rules 2006 (ACT), r 21
Insurance Contracts Act 1984 (Cth), s 56
Supreme Court Act 1970 (NSW), s 101
Surveillance Devices Act 2007 (NSW), s 40
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
House v The King [1936] HCA 40; 55 CLR 499
In re The Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318; 63 WN (NSW) 176
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham & Ors [2013] NSWCA 93
NSW Commissioner of Police v Zurich Australian Insurance Ltd [2016] NSWCA 365
Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324
Category: Principal judgment
Parties: Andrei Voitenko t/as Access Party Hire (Applicant)
Irena Voytenko t/as Russtyle Productions (Applicant)
Zurich Australian Insurance Limited (Respondent)
Representation:
Counsel:
DRJ Toomey SC, DC Morgan (Applicants)
J Sexton SC, S Walsh (Respondent)
Solicitors:
Boyd House & Partners (Applicants)
Wotton & Kearney (Respondent)

File Number(s): 2019/208904
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 680

Date of Decision:

11 June 2019

Before:

Hoeben CJ at CL

File Number(s):

2014/204107

Judgment

THE COURT: Andrei Voitenko and Irina Voytenko carried on two separate businesses at a warehouse in Mortdale. On 21 May 2010, they took out a contents insurance policy for the sum of $1.1 million with Zurich Australian Insurance Limited. Three months later, the warehouse was destroyed by fire. A claim was lodged for the full amount insured on the basis that the damage allegedly exceeded that amount. Zurich made payments in the sum of $284,917 but refused to meet any further claims.
Mr and Mrs Voitenko commenced proceedings for breach of the insurance contract, claiming damages in the sum of $786,069. The proceedings were initially defended only on the grounds that the claim was fraudulent (“fraud in the claim”).…

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: [2019] NSWCA 229
Decision Date: 16 September 2019

CaseChat Overview and Summary

Voitenko (the applicant) sought leave to appeal from a decision of a single judge of the Supreme Court of New South Wales that granted Zurich Australian Insurance Ltd (the respondent insurer) leave to amend its defence. The underlying dispute concerned a claim for property damage caused by fire. The insurer sought to amend its defence to plead arson, an application made some time after the initial defence had been filed.

The primary legal issues before the Court of Appeal were whether the primary judge erred in failing to consider the presumptive prejudice to the applicant that arises from a belated amendment to a defence, and whether the primary judge erred in their approach to the insurer's explanation for the delay in seeking the amendment. The applicant argued that the primary judge should have given greater weight to the prejudice caused by the late introduction of an arson defence, particularly in the context of the Civil Procedure Act.

Meagher and McCallum JJA dismissed the summons for leave to appeal. Their Honours found that the primary judge had adequately considered the relevant factors, including the explanation for the delay and the potential prejudice. The Court held that the primary judge was entitled to conclude that the insurer had provided a sufficient explanation for the delay and that the prejudice to the applicant could be managed through appropriate directions and orders. The Court did not consider that the primary judge had failed to have regard to presumptive prejudice, but rather that the judge had weighed this against other relevant considerations.

The summons for leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons for leave to 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

Full text does not contain this section.

Medium Neutral Citation:	Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229
Hearing dates:	13 September 2019
Decision date:	16 September 2019
Before:	Meagher JA; McCallum JA
Decision:	Summons for leave to appeal dismissed with costs
Catchwords:	CIVIL PROCEDURE – application for leave to appeal from decision granting leave to amend defence – insurance dispute – claim in respect of property damaged by fire – belated application by insurer to plead arson – no reference in primary judgment to part 6 of Civil Procedure Act – whether primary judge erred in failing to have regard to presumptive prejudice – whether primary judge erred in his approach to the defendant’s explanation for the delay in bringing the application
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59 Court Procedures Rules 2006 (ACT), r 21 Insurance Contracts Act 1984 (Cth), s 56 Supreme Court Act 1970 (NSW), s 101 Surveillance Devices Act 2007 (NSW), s 40
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 House v The King [1936] HCA 40; 55 CLR 499 In re The Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318; 63 WN (NSW) 176 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham & Ors [2013] NSWCA 93 NSW Commissioner of Police v Zurich Australian Insurance Ltd [2016] NSWCA 365 Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324
Category:	Principal judgment
Parties:	Andrei Voitenko t/as Access Party Hire (Applicant) Irena Voytenko t/as Russtyle Productions (Applicant) Zurich Australian Insurance Limited (Respondent)
Representation:	Counsel: DRJ Toomey SC, DC Morgan (Applicants) J Sexton SC, S Walsh (Respondent) Solicitors: Boyd House & Partners (Applicants) Wotton & Kearney (Respondent)
File Number(s):	2019/208904
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2019] NSWSC 680 Date of Decision: 11 June 2019 Before: Hoeben CJ at CL File Number(s): 2014/204107