Wrigley v Insurance Australia Limited

FEDERAL COURT OF AUSTRALIA

Wrigley v Insurance Australia Limited [2016] FCA 638

File number:

TAD 3 of 2015

Judge:

MOSHINSKY J

Date of judgment:

2 June 2016

Catchwords:

INSURANCE – home and contents insurance policy – residential dwelling severely damaged by fire – insurer alleged that the fire was started by the home owners – whether insurer established on the balance of probabilities that the owners started the fire

Legislation:

Criminal Code Act 1924 (Tas), Sch 1, ss 267, 268 and 269

Evidence Act 1995 (Cth), s 140

Insurance Contracts Act 1984 (Cth), ss 13, 54, 57

Cases cited:

Ashby v Slipper (2014) 219 FCR 322

Commonwealth v Fernando (2012) 200 FCR 1

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466

Date of hearing:

7, 8, 9, 10 and 11 March 2016

Registry:

Tasmania

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Category:

Catchwords

Number of paragraphs:

96

Counsel for the Applicants:

DJ Gunson SC with S Chopping

Solicitor for the Applicants:

S Chopping

Counsel for the Respondent:

M Douglas

Solicitor for the Respondent:

Dohertys Barristers & Solicitors

ORDERS

TAD 3 of 2015

BETWEEN:

BRETT ROBERT WRIGLEY

First Applicant

YVONNE WRIGLEY

Second Applicant

AND:

INSURANCE AUSTRALIA LIMITED (ACN 000 016 722) TRADING AS NRMA INSURANCE

Respondent

JUDGE:	MOSHINSKY J
DATE OF ORDER:	2 JUNE 2016

THE COURT DECLARES THAT:

1.The respondent is liable to indemnify the applicants in the amount of $497,900 in accordance with the terms and conditions of the home and contents policy of insurance (policy number HOM 491494659) issued by the respondent to the applicants on or about 16 February 2014 and in force from that date until on or about 16 February 2015 in respect of the loss by fire that occurred on 4 October 2014.

THE COURT ORDERS THAT:

2.The respondent pay the applicants interest (in respect of the period from 2 December 2014 to 11 March 2016) in the amount of $31,735.55 and (in respect of the period from 12 March 2016 to the date of payment) at a daily rate of $68.21.

3.The respondent pay the applicants’ costs of the proceeding.

4.If either party seeks a variation of orders 2 or 3 above, the party may give notice in writing to the Court and the other party within three business days.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1. On the evening of Saturday, 4 October 2014, the home of the applicants (Mr and Mrs Wrigley) at 5 Claridge Court, Triabunna, Tasmania, was severely damaged by fire.  Mr and Mrs Wrigley lived in the house with their daughter and grandson.  All of them were out of the house at the time.  The fire started in the family room at the back of the house, in the part of the room used by Mrs…