Cape Byron Power I Pty Ltd v HSB Engineering Insurance Ltd [2017] NSWSC 1081

Cape Byron Power I Pty Ltd v HSB Engineering Insurance Ltd [2017] NSWSC 1081

The DSSC Policy required a retrospective assessment of Delay by determining when practical completion would have occurred but for the insured Damage and comparing that date with the actual practical completion date of 21 November 2008. On the evidence, the plaintiffs established that practical completion would have occurred 93 days earlier, on 20 August 2008. The fuel handling system and manuals issues would have been addressed or waived earlier and did not reduce that period, but the plaintiffs did not prove that the PLC card failure was attributable to the insured Damage, so 3 days were excluded from the claimed 96 days. The full financing charges payable under the Finance Agreement...

Jurisdiction
Australia
Judgment Date
18 August 2017
Procedural Posture
Insurance Claim Under a Debt Servicing Standing Charges Insurance Policy / Principal Judgment
Outcome
The plaintiffs established coverage for a 93 day Delay, with recovery of financing charges for that period less the 45 day deductible and interest from 24 December 2014; parties were directed to bring in Short Minutes of Order.
Legal Topics
['debt Servicing Standing Charges Policy' 'damage to Works Under Construction' 'delay in Completion of Project' 'concurrent Causes of Delay' 'quantum of Financing Charges Recoverable' 'interest Under Insurance Contracts Act 1984 (cth), S 57' 'expert Opinion Admissibility' 'jones V Dunkel Inferences']
['insurance Law' 'evidence' 'contract Construction'] ['debt Servicing Standing Charges Policy' 'damage to Works Under Construction' 'delay in Completion of Project' 'concurrent Causes of Delay' 'quantum of Financing Charges Recoverable' 'interest Under Insurance Contracts Act 1984 (cth), S 57' 'expert Opinion Admissibility' 'jones V Dunkel Inferences']

Case Brief

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Procedural Posture

Insurance Claim Under a Debt Servicing Standing Charges Insurance Policy / Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiffs established a period of Delay under the DSSC Policy and its duration.' 'Whether other problems with the works, including the fuel handling system, manuals, condensate contamination and PLC card failure, affected the period of Delay recoverable.' 'Whether the recoverable financing charges should be reduced because only the Broadwater plant was affected.' 'From when interest was payable under Insurance Contracts Act 1984 (Cth), s 57.']

Ratio Decidendi

The DSSC Policy required a retrospective assessment of Delay by determining when practical completion would have occurred but for the insured Damage and comparing that date with the actual practical completion date of 21 November 2008. On the evidence, the plaintiffs established that practical completion would have occurred 93 days earlier, on 20 August 2008. The fuel handling system and manuals issues would have been addressed or waived earlier and did not reduce that period, but the plaintiffs did not prove that the PLC card failure was attributable to the insured Damage, so 3 days were excluded from the claimed 96 days. The full financing charges payable under the Finance Agreement...

Court Disposition

The plaintiffs established coverage for a 93 day Delay, with recovery of financing charges for that period less the 45 day deductible and interest from 24 December 2014; parties were directed to bring in Short Minutes of Order.

Orders

  • ['Direct that the parties confer and bring in Short Minutes of Order to give effect to these reasons within 28 days.']