Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Worth v HDI Global Specialty SE [2021] NSWCA 185 Hearing dates: 19 and 20 November 2020 Date of orders: 26 August 2021 Decision date: 26 August 2021 Before: Macfarlan JA at [1];
Meagher JA at [7];
McCallum JA at [204]Decision: (1) Allow the appeal.
(2) Set aside Order (1) made on 19 March 2020 and Orders (1) to (4) made on 17 April 2020.
(3) Judgment for the appellant against the respondent for the sum of $464,384, together with interest pursuant to Insurance Contracts Act 1984 (Cth) s 57, from 1 January 2016 to 26 August 2021 of $124,649, and $60.39 per day until the date of payment.
(4) Dismiss the cross-claim.
(5) Order the respondent to pay the appellant’s costs at first instance and on appeal.
(6) Direct the appellant within 14 days of today’s date to file a written submission providing her calculation of the interest to be awarded to her, with the respondent to file any differing calculation within 7 days thereafter.
Catchwords: INSURANCE – where appellant’s house destroyed in a fire – where house used to operate a business – where house and business insured by respondent – where respondent granted conditional indemnity under deed of release – where respondent then denied liability on basis fire deliberately lit by insured – whether primary judge erred in finding appellant deliberately started fire
INSURANCE – measure of indemnity – where lack of reasonable despatch in rectifying property – whether indemnity for property damage payable on reinstatement basis
INSURANCE – damages – whether damages available for consequential loss arising from insurer’s breach of promise to indemnify – whether damages available for inconvenience and distress caused by breach
Legislation Cited: Enterprise Act 2016 (UK), s 28
Evidence Act 1995 (NSW), s 140(2)
Insurance Contracts Act 1984 (Cth), ss 13, 14(1), 57
Cases Cited: ApostolosKonstantineVentouris v Trevor Rex Mountain (The Italia Express (No 2)) [1992] 2 Lloyd’s Rep 281
Archibald v Powlett (2017) 53 VR 645; [2017] VSCA 259
Baltic Shipping Company v Dillon (1993) 176 CLR 344
Belhaven and Stenton Peerage (1875) 1 App Cas 278
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Brescia Furniture Pty Ltd v QBE Insurance (Australia) Ltd (2007) 14 ANZ Ins Cas 61-740; [2007] NSWSC 598
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67 (HL)
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
CIC Insurance Ltd v Bankstown Football Ltd [1994] NSWCA 359; (1995) 8 ANZ Ins Cas 61-232
Globe Church Incorporated v Allianz Australia Insurance Ltd (2019) 99 NSWLR 470; [2019] NSWCA 27
Hungerfords v Walker (1989) 171 CLR 125
Judd & Judd v Suncorp Insurance & Finance (1988) 5 ANZ Ins Cas 60-832
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
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- Case
- [2021] NSWCA 185
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the primary judge erred in finding that Ms Worth deliberately started the fire, whether the indemnity for property damage was payable on a reinstatement basis despite a lack of reasonable despatch in rectifying the property, and whether damages were available for consequential loss, including inconvenience and distress, arising from the insurer's alleged breach of its promise to indemnify.
The Court of Appeal allowed the appeal, setting aside the orders of the primary judge. The Court found that the primary judge had erred in concluding that Ms Worth deliberately lit the fire. The Court determined that the appellant was entitled to judgment for the sum of $464,384, representing the indemnity for the property damage. The Court also awarded interest on this sum and dismissed the respondent's cross-claim. The respondent was ordered to pay Ms Worth's costs at first instance and on appeal.
Orders
Orders of the court
(1) Allow the appeal.
(2) Set aside Order (1) made on 19 March 2020 and Orders (1) to (4) made on 17 April 2020.
(3) Judgment for the appellant against the respondent for the sum of $464,384, together with interest pursuant to Insurance Contracts Act 1984 (Cth) s 57, from 1 January 2016 to 26 August 2021 of $124,649, and $60.39 per day until the date of payment.
(4) Dismiss the cross-claim.
(5) Order the respondent to pay the appellant’s costs at first instance and on appeal.
(6) Direct the appellant within 14 days of today’s date to file a written submission providing her calculation of the interest to be awarded to her, with the respondent to file any differing calculation within 7 days thereafter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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