David Alfred Culham and Catherine Gay Culham v Lumley General Insurance (NZ) Limited
[2001] NZCA 25
•19 February 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA274/00 |
| BETWEEN | DAVID ALFRED CULHAM AND CATHERINE GAY CULHAM |
| Applicants |
| AND | LUMLEY GENERAL INSURANCE (NZ) LIMITED |
| Respondent |
| Hearing: | 15 February 2001 |
| Coram: | Gault J Keith J Tipping J |
| Appearances: | B P Rooney for Applicants A C Challis for Respondent |
| Judgment: | 19 February 2001 |
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
Mr and Mrs Culham apply for special leave to appeal from a judgment of the High Court delivered by Robertson J, leave having been refused in the High Court.
The respondent, Lumley, insured the Culhams' house against fire. During the course of construction work on the house, there was a fire. Lumley declined to indemnify because the Culhams had not notified it of their intention to undertake the construction work. This was a breach of the policy. The Culhams relied on s11 of the Insurance Law Reform Act 1977 and set out to establish thereunder that the construction work had not caused the fire. This they failed to do in both the District Court, and in the High Court on appeal.
Mr Rooney argued that the High Court had failed to address his essential point. We consider that in substance Robertson J did address that point. The Culhams asserted at the trial that rodent damage to electrical wiring was the cause of the fire. Lumley contended, although it had no onus of proof, that "hot work" during the construction was the cause. The Judge held that neither of these contentions as to probable cause had been proved. Mr Rooney argued that in these circumstances, with no other specific cause asserted on either side, his clients had established that the fire was unrelated to the construction work. We cannot accept that proposition; nor do we consider the issue is one which qualifies for a second appeal.
The Culhams carried the onus of establishing on the evidence that no aspect of the construction work had caused the fire. Their rodent contention was not accepted. The fact that the Judge did not accept Lumley's "hot work" theory did nothing to assist the Culhams to establish what they had to establish. In the view of both Judges below, they were unable to exclude all aspects of the construction work as causative of the fire. The point essentially was and remains one of sufficiency of evidence. It involves no general or important issue concerning s11. It is unsuitable for a second appeal and, in any event, we consider the appellants' prospects of success are insufficient to warrant the grant of leave.
The application is therefore dismissed, with costs of $1500 to the respondent, together with disbursements including the reasonable travel expenses of counsel, to be fixed if necessary by the Registrar.
Solicitors
Callaghan & Co, Auckland, for Applicants
McElroys, Auckland, for Respondent
0
0
0