AMI Insurance Ltd v Devcich - [2011] NZCA 266

IN THE COURT OF APPEAL OF NEW ZEALAND

CA522/2010
[2011] NZCA 266

BETWEEN AMI INSURANCE LIMITED
Appellant

AND P R DEVCICH & ORS AS TRUSTEES OF THE PAUL DEVCICH FAMILY TRUST AND J J DEVCICH & ORS AS TRUSTEES OF THE JANICE DEVCICH FAMILY TRUST
First Respondents

AND P R DEVCICH AND J J DEVCICH
Second Respondents

Hearing: 3 March 2011

Court: Glazebrook, Allan and Simon France JJ

Appearances: G H Nation and J W A Johnson for Appellant
P J Dale for Respondents

Judgment: 14 June 2011 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe judgment of Lang J in favour of the respondents is set aside. We substitute judgment for the appellant in respect of both claims advanced by the respondents in the High Court.
CWe give judgment in favour of the appellant on its counterclaim against the respondents. Quantum is to be determined in the High Court.
DThe respondents must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.
EThe respondents are to repay to the appellant the sum of $160,663.27, paid by it for costs and disbursements in the High Court proceedings on 22 October 2010, together with interest (at 8.4 per cent in accordance with s 87(3) of the Judicature Act 1908) from that date to the date of repayment, pursuant to r 54(2) of the Court of Appeal (Civil) Rules 2005.
FQuestions as to costs in the High Court are to be determined by the High Court in the event that the parties are unable to agree.

_________________________________________________________________

REASONS OF THE COURT

(Given by Allan J)

Table of Contents

Para No

Introduction  [1]
The competing arguments  [10]
Standard of proof  [13]
High Court factual findings  [16]
         Not random vandalism  [17]
         Motive  [19]
         Mr Devcich’s movements on 24 April  [27]
         Mr Devcich’s demeanour on 24 April  [34]
         The petrol purchase of 19 April  [39]
         The open home on 25 April  [44]
         How many hedges?  [46]
         Mr Devcich’s personality  [47]
         The dispute between Mr Devcich and his neighbours  [51]
         Means of entry  [73]
         The knife on the bench  [82]
The Judge’s ultimate conclusions  [84]
Discussion  [90]
Result   [107]

Introduction

A little before 8 am on the morning of Friday 24 April 2009, Mr Paul Devcich left his home at 2/14 Coronation Road, Epsom, in order to travel to his place of work in central Auckland. Minutes later, a neighbour saw smoke and flames emanating from the northern side of Mr Devcich’s house, in the area of the lounge. The fire service was called. The fire was controlled and then extinguished relatively quickly, but there was extensive fire damage to the lounge and smoke, heat and water damage elsewhere.
The fire service commenced an immediate investigation into the likely cause of the fire. Fire service personnel called the police when it became plain that the fire had been deliberately lit.
Having been alerted by a neighbour, Mr Devcich returned to his house from the city. He…

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.

Continue reading AMI Insurance Ltd v Devcich

Details

AGLC: AMI Insurance Ltd v Devcich [2011] NZCA 266
Case: [2011] NZCA 266
Decision Date: 14 June 2011

CaseChat Overview and Summary

In AMI Insurance Ltd v Devcich, the Court of Appeal of New Zealand was tasked with determining whether AMI Insurance Limited (AMI) had successfully proven that Paul Devcich, the insured party, deliberately set fire to his house, thus justifying the denial of his insurance claims. The Court had to assess AMI's evidence against the standard of proof required in such cases, which, while not as stringent as the criminal standard of proof beyond reasonable doubt, was notably higher than the ordinary civil standard of proof on the balance of probabilities. The Court of Appeal found that the High Court's judgment in favour of the Devcichs was incorrect due to the application of an inappropriate standard of proof. The appeal was allowed, and the Court substituted its judgment for the appellant in respect of both claims advanced by the respondents in the High Court. The Court held that AMI had established its case against the respondents on the balance of probabilities, considering the seriousness of the allegations. Consequently, the Court ruled in favour of AMI on its counterclaim for investigation costs, with the quantum of these costs to be determined in the High Court. The respondents were ordered to repay the sum of $160,663.27, which had been paid by AMI for costs and disbursements in the High Court proceedings, along with interest, and to pay AMI's costs for the standard appeal on a band A basis and usual disbursements.

Orders